                                                                                   ACCEPTED
                                                                              03-14-00454-CR
                                                                                      4488029
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                        3/13/2015 10:50:23 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
             THIRD DISTRICT COURT OF APPEALS

                             AUSTIN                         FILED IN
                                                     3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                       ___________________           3/13/2015 10:50:23 AM
                                                         JEFFREY D. KYLE
                       Np. 03-14-00454-CR                     Clerk
                       __________________

                    CLIFTON CREWS HOYT,
                               Appellant

                              versus

                        STATE OF TEXAS,
                                  Appellee

        _____________________________________________

On Appeal from A DWI Conviction in the 391ST Judicial District Court
    Tom Green County, JUNE 11, 2014, Cause No. D-10-0665-SA
            Honorable TOM GOSSETT, Judge Presiding
       _____________________________________________

           REPLY BRIEF BY CLIFTON CREWS HOYT

                                    By: /s/ John T Floyd
                                    John Thomas Floyd III
                                    Texas Bar No. 00790700
                                    By: /s/ Christopher M. Choate
                                    Christopher M. Choate
                                    Texas Bar No. 24045655
                                    Principal Office
                                    The Kirby Mansion
                                    2000 Smith Street
                                    Houston, TX 77002
                                    Tel: 713-581-1060
                                    Fax: 713-237-1511

                                    Attorneys for Appellant
                 IDENTITY OF PARTIES AND COUNSEL

John T. Floyd III, SBOT No. 00790700, Appellant’s trial counsel, Principal Office,
The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel: 713-581-1060.

Christopher M. Choate, SBOT 24045655, Appellant’s trial counsel, Principal
Office, The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel. 713-
581-1060.

Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green
County, 124 West Beauregard, San Angelo, Texas 76903, Tel: 325-659-6583.

Honorable Tom Gossett, Tom Green County, 112 W. Beauregard, San Angelo,
Texas. 76903, Tel: 325-659-6569.




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                                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. i
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES .......................................................................................................... ii
CLARIFICATION OF ARGUMENTS .......................................................................................... 1
   ARGUMENT ONE: THERE WAS NO PROBABLE CAUSE TO CONDUCT TRAFFIC STOP. ..................... 1
   ARGUMENT TWO: THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION PURSUANT
   TO TEX. PENAL CODE § 49.01, ET SEQ. ........................................................................................ 7
CONCLUSION ............................................................................................................................... 9
CERTIFICATE OF SERVICE ..................................................................................................... 10
CERTIFICATE OF COMPLIANCE ............................................................................................ 10


                                             TABLE OF AUTHORITIES
Cases
Adams v. Williams, 407 U.S. 143, 147 (1972). ............................................................................... 3
Bass v. State, 64 S.W.3d 646, 651 (Tex.App.-- Texarkana 2001, pet. ref'd) .................................. 5
Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003, pet. ref’d) ....................... 7
Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011). ......................................... 3
Eichler v. State, 117 S.W.3d 897, 898 (Tex.App.-- Houston [14th Dist.] 2003, no pet.)............... 5
Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994)................................................... 7
Florida v. J.L., 529 U.S. 266, 268 (2000). ...................................................................................... 2
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). ........................................................ 2
Fowler v. State, 266 S.W.3d 498, 499 (Tex.App.--Fort Worth 2008, pet. ref'd) ............................ 5
Hernandez v. State, 983 S.W.2d 867, 870-71 (Tex.App.—Austin 1998) ...................................... 4
Kirsch v. State, 306 S.W.3d 738. 745 (Tex. Crim. App. 2010). ..................................................... 7
State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.--San Antonio 1999, pet. ref'd)............................. 5
State v. Cerny, 28 S.W.3d 796, 799 (Tex.App.--Corpus Christi 2000, no pet.) ............................. 5
State v. Gendron, 2015 Tex. App. LEXIS 1334, No. 08-13-00119-CR (Tex.App.—El Paso Feb.
  11, 2015) ..................................................................................................................................... 4
State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.--Waco 1998, pet. ref'd) ..................................... 5
Statutes
Tex. Penal Code § 49.01 ............................................................................................................. 6, 8
Tex. Transp. Code § 545.060(a) ..................................................................................................... 4
Rules
Tex. R. App. P. 38.3........................................................................................................................ 1
Tex. R. Evid. 702 ............................................................................................................................ 7
Tex. R. App. P. 9.4(i)(2)(c) ........................................................................................................... 10




                                                                                                                                                 ii
                      CLARIFICATION OF ARGUMENTS
      Through undersigned counsel and pursuant to Tex. R. App. P. 38.3,

Appellant respectfully files this reply brief to clarify some issues presented in

Appellee’s original brief.

ARGUMENT ONE: THERE WAS NO PROBABLE CAUSE TO CONDUCT THE TRAFFIC STOP.

      As evidenced throughout its brief, the State’s entire case hinges on the “wide

right turn” appellant reportedly made off Alexander Street onto Houston Harte in

San Angelo the night Appellant was arrested. (TR., Vol. 2, p. 24). This alleged

traffic violation, which was not conducted in an unsafe manner, was the basis for

the initial traffic stop of appellant by Officer Stewart.

      As pointed out in appellant’s original brief, certain basic facts are not in

dispute. At approximately 2:21 a.m., Officer Stewart was dispatched to a

Whataburger restaurant on Sherwood Way in San Angelo to check out a report

about an intoxicated driver there. (TR., Vol. 2, p. 22-23). Officer Stewart obtained

a description of the suspect’s vehicle from the dispatcher. No such vehicle was

located at the restaurant.

      The dispatcher did not provide the officer with any additional information

about how he or she received the information concerning the alleged intoxicated

driver. The dispatcher could only provide Officer Stewart with a description of the

vehicle. It can be presumed, although it was not established by the State, that the


                                                                                  1
dispatcher received the information about the intoxicated driver from either an

identifiable citizen or an anonymous tipster. But one thing is certain: Officer

Stewart could not state how the dispatcher received the information. (TR., Vol. 2,

p. 41-42).

      The appellant asserts that the State had the burden to establish by what

means the dispatcher obtained information about the intoxicated driver and the

description of his vehicle. The State did not meet this burden. This is a crucial

deficiency in the State’s case because the record does not disclose if the

information about the alleged intoxicated driver and vehicle description was

obtained from a confidential informant. The law in place at the time of this incident

was that a police officer could not stop and detain a person based solely on a bare-

bones confidential tip. Florida v. J.L., 529 U.S. 266, 268 (2000).

      The bare-bones information regarding a general description of a vehicle—

which was based on a confidential tip—did not establish probable cause for Officer

Stewart to seek out and identify a vehicle suspected of being driven by an

intoxicated person. Id.

      Once Officer Stewart was dispatched to the Whataburger, and after he could

not locate such a driver or described vehicle, he no longer had a reasonable

suspicion that criminal activity was present in that area. Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005). He did not interview either the employees and/or


                                                                                   2
customers at the restaurant to determine if an intoxicated driver had been there; and

if so, to obtain a description of that individual. All the officer had to operate on

was a dispatcher’s call based on a bare-bones anonymous tip which, at the time,

did not establish probable cause to believe a crime had been committed. J.L., 529

U.S. at 268.

      This is not a case where the record reflects that the information provided to

the police dispatcher came from a citizen-informant who identified himself so he

could be held accountable for the accuracy and veracity of his report. Adams v.

Williams, 407 U.S. 143, 147 (1972). In such a context, it could be objectively

reasonable to believe that an intoxicated driver might be present at the

Whataburger. Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App.

2011).

      This case therefore turns on the fact that once he determined there was no

suspected intoxicated driver at the Whataburger, Officer Stewart did not have a

reasonable suspicion to seek out and pursue a suspected DWI vehicle. When

Officer Stewart was unable to find the vehicle at the Whataburger, he went

searching for a vehicle matching a general description provided by a presumably

anonymous tipster; he then followed it for several blocks. Nothing about the way

the vehicle was being driven created a reasonable suspicion that the driver of the

vehicle was engaged in criminal activity by driving while intoxicated. In fact,


                                                                                   3
Officer Stewart admitted during his testimony that he did not observe any alleged

traffic violations until the Defendant made a right turn that allegedly went wide, a

turn which did not even rise to the level of a traffic violation, as developed further

infra.

         Officer Stewart’s patrol vehicle was equipped with a video camera. Standard

law enforcement protocol for a patrol officer following a vehicle in which the

occupants may be engaged in criminal activity is to activate the “dash cam” at the

outset of the surveillance and keep it activated throughout any subsequent stop.

However, in this case, it was only after the alleged wide right turn had been

completed that Officer Stewart activated the dash cam and his strobe lights. (TR.

Vol. 2, p. 46-47). The officer testified at trial that motorists frequently make wide

right turns and that such turns, standing alone, are not an indication of intoxication.

(TR., Vol. 2, p. 44-45).

         Indeed, wide right turns are not necessarily traffic violations if they are done

in a manner that is not unsafe or dangerous. As stated in Hernandez v. State, 983

S.W.2d 867, 870-71 (Tex.App.—Austin 1998), if other drivers are not endangered

by the failure to maintain the designated lane, the driver has not committed a traffic

infraction under Tex. Transp. Code § 545.060(a). Id. See also State v. Gendron,

2015 Tex. App. LEXIS 1334, No. 08-13-00119-CR (Tex.App.—El Paso Feb. 11,

2015) citing Fowler v. State, 266 S.W.3d 498, 499 (Tex.App.--Fort Worth 2008,


                                                                                       4
pet. ref'd) (no reasonable suspicion to stop vehicle at 12:25 a.m. that drifted over

lane line by one tire width once and touched the lane line two other times); Eichler

v. State, 117 S.W.3d 897, 898 (Tex.App.-- Houston [14th Dist.] 2003, no pet.)

(holding no reasonable suspicion when car crossed lane line on interstate in light

traffic at 12:30 a.m.); Bass v. State, 64 S.W.3d 646, 651 (Tex.App.-- Texarkana

2001, pet. ref'd) (no reasonable suspicion to stop defendant who swerved within his

lane line, and crossed it some unknown number of times over two to three mile

stretch); State v. Cerny, 28 S.W.3d 796, 799 (Tex.App.--Corpus Christi 2000, no

pet.) (holding no reasonable suspicion to stop defendant existed when car "just

barely" swerved onto shoulder of lane of oncoming traffic, then crossed over

shoulder line three to four times); State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.--

San Antonio 1999, pet. ref'd) (van drifting toward center divider--but within lane--

two to seven times near nightclub around 1:50 a.m.); State v. Tarvin, 972 S.W.2d

910, 912 (Tex.App.--Waco 1998, pet. ref'd) (holding no reasonable suspicion

existed when car drifted over outside shoulder line two to three times at 2:00 a.m.

near nightclub).

      Thus, it can be reasonably argued that the wide right turn, which was not

recorded and was admittedly conducted in a manner which was not unsafe, was a

pretext used by Officer Stewart to stop a vehicle whose driver he suspected,

without any reasonable suspicion, was intoxicated.


                                                                                  5
      And this brings us to the two factors relied upon by Officer Stewart to

conduct the Standard Field Sobriety Test (“SFST”) after the traffic stop: odor of

alcohol and bloodshot eyes. However, neither observation, standing alone or in

concert, is conclusive evidence of intoxication above the BAC of .08 as set forth in

Tex. Penal Code § 49.01(B). Intoxication in Texas is defined as: “not having the

normal use of mental or physical faculties by reason of the introduction of alcohol,

a controlled substance, a drug, a dangerous drug, a combination of two or more of

those substances, or any other substance into the body …” Id. § 49.01(A).

      The odor of alcohol alone is insufficient to establish intoxication because a

BAC level of .06 under the National Highway Traffic Safety Administration may

indicate impairment but does not constitute legal intoxication. A level .06 alcohol

impairment can not only produce an odor of alcohol, it can also produce bloodshot

eyes, as could a host of medical reasons, such as allergies. In fact, Officer Stewart

testified that training in SFST teaches that bloodshot eyes, alone, do not constitute

impairment; and he also conceded that the odor of alcohol does not “quantify any

level of impairment.” (TR., Vol. 2, p. 53-54).

      Thus, Officer Stewart did not have either probable cause or reasonable

suspicion to believe the appellant was intoxicated beyond the legal limit set forth in

Tex. Penal Code § 49.01(B) to detain and conduct the SFST.




                                                                                    6
ARGUMENT TWO: THERE       WAS   INSUFFICIENT EVIDENCE   TO   SUSTAIN   A   CONVICTION

PURSUANT TO TEX. PENAL CODE § 49.01, ET SEQ.

       The State’s brief relies heavily on appellant’s performance during the SFST

to not only underwrite the issue of probable cause but to support its position that

the evidence presented at trial was sufficient to support the conviction. However,

as pointed out in appellant’s original brief, the Texas Court of Criminal Appeals

has consistently held that evidence of poor performance on a SFST is only one

indicator of intoxication. Kirsch v. State, 306 S.W.3d 738. 745 (Tex. Crim. App.

2010). That indicator is applicable only if the SFST is conducted according to

standardized protocols established by the National Highway Traffic Safety

Administration.

       The Court has held that a properly administered SFST is admissible

scientific evidence under Tex. R. Evid. 702. Emerson v. State, 880 S.W.2d 759,

769 (Tex. Crim. App. 1994). Slight variations in the administration of portions of

the SFST does not render the evidence unreliable, but may affect the weight of the

testimony. Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003,

pet. ref’d).

       Officer Stewart admitted on cross-examination that he violated most of the

SFST protocols. They were not “slight variations.” They were violations that went




                                                                                    7
to the very reliability of the intoxication determination the officer made pursuant to

that test. These following examples of the officer’s violations support this claim:

   • Officer Stewart could not state how many SFSTs he had conducted or even
     place an estimate on the number. (TR., Vol. 2, p. 55).
   • Officer Stewart did not turn off his strobe lights as he had been instructed in
     training to do during the HGN test. Id., at 56.
   • The clues from the HGN were indicated while the distracting strobe lights
     were on. Id., at 57-58.
   • Officer Stewart did not turn appellant away from the distraction of passing
     traffic during the HGN as required under SFST. Id., 58.
   • Officer Stewart allowed other officers present at the scene to walk by and
     around appellant during the HGN test which is considered an unacceptable
     distraction under the SFST. Id., at 59.
   • Officer Stewart continued to give appellant “instructions” while he was
     performing the “walk and turn” part of the SFST—instructions that should
     have been given before, not during, the test. Id., at 65.
   • Officer Stewart conceded giving instructions during the “walk and turn” test
     violated SFST protocols. Id., at 66.
   • Officer Stewart could not state with certainty that the violation of the “walk
     and turn” protocols did not invalidate the results of the test. Id.
   • Officer Stewart conceded that the failure to follow the SFST protocols can
     have an impact on the results of the test. Id., at 69.
   • Officer Stewart admitted that he interfered with the “one-leg stand” part of
     the SFST in violation of protocol. Id., at 70.
   • Officer Stewart conceded that interference with the “one-leg stand” test
     could cause someone to lose their balance. Id., at 72.

      Inasmuch as Officer Stewart’s administration of the SFST was deficient, it

certainly should not be a basis for a finding of intoxication within the definition of

Tex. Penal Code § 49.01. Appellant’s poor performance on the SFST was the core

of the State’s evidence of intoxication. A finding of intoxication based on such a




                                                                                      8
flawed SFST undermines the integrity of a trial by reliable evidence guaranteed by

the Texas Constitution and its statutes.

                                  CONCLUSION

      For these reasons, and for any reason as may appear to the Court, the

appellant requests that the Court issue a judgment of acquittal or remand his case

for a new trial.

      Dated this 13th day of March, 2015.


                                       Respectfully submitted,

                                       By: /s/ John T Floyd
                                       John Thomas Floyd III
                                       Texas Bar No. 00790700
                                       SPN 50790700
                                       /s/ Christopher M. Choate
                                       Texas Bar No. 24045655
                                       Principal Office
                                       The Kirby Mansion
                                       2000 Smith Street
                                       Houston, TX 77002
                                       Tel: 713-224-0101
                                       Fax: 713-237-1511

                                       Attorneys for Defendant




                                                                                9
                           CERTIFICATE OF SERVICE

        I hereby certify that a copy of this, Appellant’s Reply Brief, has been served

upon Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green

County, 124 West Beauregard, San Angelo, Texas 76903 on this 13th day of

March, 2015 by placing same in the United States Postal System.

/s/ John T Floyd
/s/ Christopher M. Choate


                       CERTIFICATE OF COMPLIANCE

        Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(c), this Appellant’s

Brief is comprised of 2,656 words, as calculated by Microsoft Word for Windows

2010.

/s/ John T. Floyd
/s/ Christopher M. Choate




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