Brian Anthony Cheek v. State , 543 S.W.3d 883 ( 2018 )

Affirmed and Opinion filed March 6, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00787-CR
BRIAN ANTHONY CHEEK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 03CR1089
OPINION
Appellant Brian Anthony Cheek challenges the trial court’s judgment
revoking his community supervision. Appellant asserts that the State violated his
constitutional rights to a speedy trial and that the trial court abused its discretion in
denying his motion to suppress evidence allegedly obtained in violation of the
Fourth Amendment of the United States Constitution. We conclude that appellant
did not preserve error on his speedy-trial complaint and that the trial court did not
abuse its discretion in denying appellant’s motion to suppress. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, appellant was charged with engaging in organized criminal activity,
specifically the burglary of a habitation. Appellant pled “guilty” and the trial court
sentenced him to ten years’ confinement. The trial court then suspended the
sentence and placed appellant on community supervision.
Appellant’s community supervision required, among other things, that
appellant (1) commit no offense against the laws of the State of Texas or of any
other State, the United States or any governmental entity, (2) report in person to
the supervision officer at least once each month, (3) abstain from the use or
possession of any drugs, except those taken or possessed under doctors’ orders,
and (4) participate in a program designed to detect controlled substances.
The Traffic Stop
One night in October 2011, Officer Scott Karpowicz, patrolling in his
vehicle, saw six lights coming from the front of appellant’s truck. The officer
suspected the driver was violating Texas Transportation Code section 547.302,
which regulates the types of lights that can be lighted on the front of a motor
vehicle. See Tex. Transp. Code Ann. § 547.302 (West, Westlaw through 2017 1st
C.S.). So, the officer initiated a traffic stop. As a result of the stop appellant was
charged with possession of a controlled substance and driving with an invalid
license. Also, as a result of the traffic stop, Officer Karpowicz became aware that
a neighboring county had issued a warrant for appellant’s arrest for driving with an
invalid license.
Motion to Revoke Appellant’s Community Supervision
In 2012, the State filed a motion to revoke appellant’s community
supervision. The State alleged that appellant violated the terms of his community
2
supervision by,1 (1) committing the offense of driving with an invalid license, (2)
being arrested on a warrant from another county for driving with an invalid license,
(3) failing to report to his adult community-supervision officer as ordered, and (4)
submitting a urine sample that tested positive for amphetamines.
Time and again the trial court reset the hearing on the motion to revoke
appellant’s community supervision while other cases against appellant went to trial
in neighboring counties. Before the revocation hearing, appellant filed a motion to
dismiss and a motion to suppress evidence. The trial court denied both motions.
Evidence at the Revocation Hearing
At the hearing on the State’s motion to revoke appellant’s community
supervision, Officer Karpowicz testified that during the traffic stop he discovered
that appellant had a suspended driver’s license and an outstanding warrant for
appellant’s arrest in Waller County. Appellant’s community-supervision officer
testified that appellant did not report in January, February, March, April, August,
or December of 2011 nor in January or February of 2012.
Trial Court’s Findings
The trial court found “true” to the State’s allegations that appellant
committed the offense of driving without a license, that appellant was arrested for
driving with an invalid license in Waller County, and failed to report to his adult
community-supervision officer as ordered in January, February, March, April,
August, and December of 2011 and January and February of 2012. The trial court
found “not true” to the State’s allegation that appellant submitted a urine sample
that tested positive for amphetamines.
1
The State alleged also that appellant committed the offense of possession of a controlled
substance, but the State later abandoned this allegation.
3
The trial court heard evidence on numerous extraneous offenses that the
State had not alleged in the motion to revoke appellant’s community supervision.
The trial court revoked appellant’s community supervision and reduced his
sentence to seven years’ confinement.
Speedy Trial Argument
In his first issue, appellant asserts that the trial court erred in denying his
motion to dismiss the State’s motion to revoke appellant’s community supervision
because the delay in hearing the motion to revoke violated his federal
constitutional right to a speedy trial under the Sixth and Fourteenth Amendments
and his right to a speedy trial under article I, section 10 of the Texas Constitution.
In the motion to dismiss, appellant alleged that “since the filing of the
Motion to Revoke on December 6, 2011, the state has not used due diligence to
bring the probationer to a revocation hearing.” Appellant argued that the trial court
should dismiss the motion to revoke appellant’s community supervision because
under Texas law, a revocation hearing cannot be held after the probationary period
has expired unless the State exercises due diligence in pursuing the hearing. In
support of the motion, appellant cited Brecheisen v. State, 4 S.W.3d 761 (Tex.
Crim. App. 1999); Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992); and
Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002). All three cases relate to
due diligence. Peacock, 77 S.W.3d at 285–92; Brecheisen, 4 S.W.3d at 761–65;
Harris, 843 S.W.2d at 34–36. In none of them do the courts discuss any
constitutional right to a speedy trial. Peacock, 77 S.W.3d at 285–92; Brecheisen, 4
S.W.3d at 761–65; Harris, 843 S.W.2d at 34–36. At the hearing on the motion to
dismiss, appellant continued to argue that the State did not exercise due diligence
in bringing appellant to trial. Appellant did not mention “speedy trial” or invoke
any constitutional right or direct the trial court’s attention to any argument or
4
authorities relating to speedy trial. The record contains nothing that would have
alerted the trial court to a speedy-trial issue.
To present a complaint on appeal, the record must show that the objecting
party made the complaint to the trial court by a timely request, objection, or motion
that stated the grounds for the ruling sought with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context. Tex. R. App. P. 33.1(a)(1)(A). Texas Rule of Appellate Procedure
33.1 places the burden on appellant to clearly convey to the trial judge the
particular complaint, including the precise application of the law as well as the
underlying rationale. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Error preservation does not involve a hyper-technical or formalistic use of words
or phrases, but to avoid forfeiting a complaint on appeal, the party must let the trial
judge know what relief the party seeks, why the party is entitled to the requested
relief, and to do so clearly enough for the judge to understand the issue at a time
when the judge can do something about it. Id. Requiring parties to state their
complaints precisely gives the trial court a chance to rule on the objection by
informing the judge of the basis for it and also gives the opposing side a chance to
respond to the complaint. Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App.
2015). Appellant was required to preserve error on his claim that the delay in
hearing the motion to revoke his community supervision violated his constitutional
right to a speedy trial. See Dunn v. State, 819 S.W.2d 510, 526 (Tex. Crim. App.
1991). Presenting a statutory or common-law speedy-trial claim to the trial court
does not preserve error on a claim that the State has violated appellant’s
constitutional right to a speedy trial. See id. Because appellant failed to preserve
error on his complaint that the State violated his constitutional right to a speedy
trial, we overrule appellant’s first issue.
5
Motion to Suppress Argument
Appellant next contends that the trial court abused its discretion in denying
his motion to suppress on the grounds that Officer Karpowicz did not have
reasonable suspicion to believe that appellant was committing a traffic violation
when he stopped appellant’s truck. Appellant points to the officer’s testimony and
argues that the officer’s mistaken belief about the law led to the traffic stop.
According to appellant, Officer Karpowicz incorrectly believed any vehicle with
six lights shining from the front of the vehicle violated Transportation Code
section 547.302 when, appellant contends, in reality if some of the lights on the
front of the vehicle were fog lights or different types of auxiliary lights, the
lighting combination would not violate section 547.302.
At the hearing on the motion to suppress, Officer Karpowicz testified that he
stopped appellant’s truck because he saw six headlights illuminated on the front
and suspected a section 547.302 violation. According to Officer Karpowicz, when
he made the stop, two original headlamps and four after-market headlamps were
shining from the front of the truck.
During cross-examination, defense counsel questioned Officer Karpowicz
about permissible combinations of lights and the officer agreed that in addition to
four headlamps, it is permissible to have other lamps illuminating the front of a
vehicle, including fog lamps. When asked about the Transportation Code’s
definition of a headlamp, Officer Karpowicz could not recall the specific
definition, but stated “I know what a headlamp is.” Officer Karpowicz agreed that
the Transportation Code had different definitions for fog lamps, auxiliary lamps,
and spotlamps and acknowledged that he did not know the candlepower of the
lights on appellant’s truck.
On recross examination, the prosecutor followed up with a hypothetical
6
question:
[Prosecutor]: “If the Transportation Code actually specified that you
simply can’t have more than four lights, and included in its definition
is spotlights or other types of auxiliary lamps, based on that, would
the defendant have been in violation when you pulled him over?
[Officer Karpowicz]: With the amount of lights he had illuminated,
yes.
Defense counsel showed Officer Karpowicz a photograph of a truck.
Officer Karpowicz acknowledged that the truck looked like appellant’s truck, but
the officer testified that he had not taken the photograph nor did he know who took
the photograph or when it was taken. Officer Karpowicz testified that the truck in
the photograph had only four headlamps, not six. Appellant testified that the
photograph depicted his truck on the night Officer Karpowicz made the traffic
stop. Appellant testified that the truck contained four headlamps and two fog
lamps.
Standard of Review
We review a trial a trial court’s ruling on a motion to suppress under a
bifurcated standard. Ramirez-Tamayo v. State, No. PD-1300-16, 2017 WL
4159140, at *4 (Tex. Crim. App. Sept. 20, 2017). As long as the record supports
the trial court’s determination of historical facts, and mixed questions of law and
fact that rely on credibility, we grant those determinations almost total deference.
State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We review de
novo the trial court’s application of the law to the facts. Ramirez-Tamayo, 2017
WL 4159140, at *4. When, as in this case, the trial judge does not make formal
findings of fact, we uphold the trial court’s ruling on any theory of law applicable
to the case and presume the court made implicit findings in support of its ruling if
the record supports those findings. Tutson v. State, 530 S.W.3d 322, 326 (Tex.
7
App.—Houston [14th Dist.] 2017, no pet.).
Under the Fourth Amendment, an officer must have reasonable suspicion to
justify a warrantless detention that amounts to less than a full custodial arrest.
Kerwick, 393 S.W.3d at 273. An officer may make a traffic stop if the reasonable-
suspicion standard is satisfied. State v. Cortez, No.PD-0228-17, 2018 WL 525696,
at *4 (Tex. Crim. App. Jan. 24, 2018). An officer has reasonable suspicion if the
officer has specific, articulable facts that, combined with rational inferences from
those facts, would lead the officer reasonably to conclude that the person detained
is, has been, or soon will be engaged in criminal activity. Id. We review
reasonable suspicion by considering the totality of the circumstances. Id. When a
police officer stops an individual without a warrant, the State has the burden of
proving the reasonableness of the stop at a suppression hearing. Id. Because the
police arrested appellant without a warrant, the State had the burden to prove that
reasonable suspicion for the traffic stop. See id.
Texas Transportation Code section 547.302, entitled “Duty to Display
Lights,” provides:
(a) A vehicle shall display each lighted lamp and illuminating device
required by this chapter to be on the vehicle:
(1) at nighttime; and
(2) when light is insufficient or atmospheric conditions are
unfavorable so that a person or vehicle on the highway is not clearly
discernible at a distance of 1,000 feet ahead.
(b) A signaling device, including a stoplamp or a turn signal lamp,
shall be lighted as prescribed by this chapter.
(c) At least one lighted lamp shall be displayed on each side of the
front of a motor vehicle.
(d) Not more than four of the following may be lighted at one time on
the front of a motor vehicle:
8
(1) a headlamp required by this chapter; or
(2) a lamp, including an auxiliary lamp or spotlamp, that projects a
beam with an intensity brighter than 300 candlepower.
Tex. Transp. Code Ann. § 547.302. Other sections contain specifications and
restrictions for various types of lamps for motor vehicles. Section 547.327
provides that a motor vehicle may be equipped with not more than two spotlamps.
Tex. Transp. Code Ann. § 547.327 (West, Westlaw through 2017 1st C.S.).
Section 547.328 provides that a motor vehicle may be equipped with not more than
two fog lamps. Tex. Transp. Code Ann. § 547.328 (West, Westlaw through 2017
1st C.S.). And, sections 547.330 and 547.331 permit auxillary lamps. See Tex.
Transp. Code Ann. §§ 547.330–331 (West, Westlaw through 2017 1st C.S.). None
of these sections authorize additional headlamps.
Officer Karpowicz testified that he knew what a headlamp was and that he
stopped appellant because appellant’s truck had six headlamps. Officer
Karpowicz’s response to the prosecutor’s hypothetical question did not show
Officer Karpowicz did not know or follow the law. The officer answered
affirmatively when the prosecutor asked if appellant would have violated the law if
the law prohibited more than four lamps. Appellant contends that this testimony
shows that Officer Karpowicz disregarded the law. Officer Karpowicz’s answer to
the prosecutor’s hypothetical inquiry did not indicate the officer’s understanding of
Texas law. Instead, Officer Karpowicz’s answer was a conditional statement – his
response hinged on the validity of the prosecutor’s hypothetical premise. Officer
Karpowicz’s statement was not a positive statement about his own understanding
of Texas law. Throughout the rest of his testimony, Officer Karpowicz
demonstrated that he understood that a vehicle may have more than four lamps as
long as the vehicle does not have more than four headlamps. Even if Officer
Karpowicz was mistaken about the way Texas law governs scenarios in which
9
vehicles have four headlamps and various additional lamps, that mistake would not
impact appellant’s case. Officer Karpowicz testified that he knew what a
headlamp was and that appellant’s truck had six headlamps: two standard
headlamps and four auxiliary headlamps. In his brief, appellant admits that
lighting a vehicle with two headlamps and four auxiliary headlamps violates
section 547.302. But, appellant contends that the trial court lacked the discretion
to believe Officer Karpowicz’s testimony because the officer did not specify in his
police report the details about the six lamps he saw on the truck. Though less
detailed, the police report does not conflict with Officer Karpowicz’s testimony.
Appellant also points to photographs of his truck that he contends show the
truck did not have six headlamps. But, no trial witness knew when the
photographs had been taken or who took them. The trial judge was entitled to
disbelieve appellant’s testimony that the photograph accurately represented the
state of appellant’s truck when Officer Karpowicz made the traffic stop. See State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (noting trial judge is entitled
to believe or disbelieve all or any part of a witness’s testimony even if that
testimony is not controverted). While Officer Karpowicz testified that the truck in
the photographs looked like appellant’s truck, he did not testify that the photograph
accurately depicted the lighting on appellant’s truck at the time of the traffic stop.
Appellant argues that Officer Karpowicz did not know the candlepower of
the lights, but the officer testified that he knew what a headlamp was and that
appellant’s truck had six headlamps. Appellant testified that the truck had four
headlights and two fog lights. The trial court was entitled to disbelieve appellant’s
testimony and to credit Officer Karpowicz’s testimony. See Ross, 32 S.W.3d at
855. The trial court had the discretion to determine that Officer Karpowicz
initiated the traffic stop because he saw six headlamps. See id. And, because
10
lighting a truck with six headlamps violates section 547.302, the trial court did not
abuse its discretion in determining Officer Karpowicz had reasonable suspicion to
stop appellant’s truck. See Cortez, 2018 WL 525696, at *4; Garza v. State, 474
S.W.3d 825, 828–31 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We conclude
the trial court did not abuse its discretion in denying appellant’s motion to
suppress. We overrule appellant’s second issue.
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jewell.
Publish — TEX. R. APP. P. 47.2(b).
11