Jerry Wayne Jerger, Jr. v. State ( 2018 )

NOS. 12-17-00321-CR
12-17-00322-CR
12-17-00323-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JERRY WAYNE JERGER, JR., § APPEALS FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Jerry Wayne Jerger, Jr. appeals his conviction for unlawful possession of a firearm by a
felon and two convictions for manufacture or delivery of a controlled substance. In two briefs,
each containing two issues, Appellant argues that the trial court erred by denying his motions to
suppress and that the judgments contain clerical errors. We affirm.
BACKGROUND
On January 5, 2017, Detective Logan Smith of the Smith County Sheriff’s Office initiated
a traffic stop on Appellant because a computer check on the vehicle’s license plates showed
expired registration. After stopping Appellant, however, Smith observed that the registration
sticker on the front windshield indicated that the vehicle’s registration was not expired. Smith
performed a computer check on the sticker and learned that it belonged to another vehicle. Smith
arrested Appellant for displaying the wrong registration insignia, and during a search of
Appellant’s person incident to the arrest, he found a large bag of methamphetamine. Based on this
incident, Appellant was charged by indictment with manufacture or delivery of a controlled
substance in penalty group 1, specifically by possessing four grams or more but less than two
hundred grams of methamphetamine with intent to deliver.
On February 7, 2017, Tyler Police Officer Steve Black stopped to talk to Appellant and
two other people standing at a car wash. When Black asked about a U-Haul vehicle parked in one
of the bays, Appellant said he was taking it from Bullard to Lake Palestine. After obtaining
Appellant’s identification, Black determined that he had a parole violation warrant. When Black
attempted to arrest Appellant, he fled on foot but was apprehended a short time later. After
Appellant was placed in custody, Black asked Officer John Holland to check out the U-Haul
vehicle. Upon looking through the vehicle’s windows with a flashlight, Holland saw a bag of
methamphetamine and the muzzle end of a handgun. Surveillance video confirmed that Appellant
was the driver of the vehicle. Based on this incident, Appellant was charged by two indictments
with unlawful possession of a firearm by a felon and manufacture or delivery of a controlled
substance in penalty group 1, specifically by possessing two hundred grams or more but less than
four hundred grams of methamphetamine with intent to deliver.
After the trial court denied his motions to suppress, Appellant pleaded “guilty” to the
charges. The trial court assessed his punishment at imprisonment for twenty years in the firearm
case and fifty years in each of the controlled substance cases. This appeal followed.1
MOTIONS TO SUPPRESS
In Appellant’s first issue in Cause No. 12-17-00323-CR, he argues that the evidence found
on his person should have been suppressed because the traffic stop was extended beyond the time
necessary to complete its purpose. In Appellant’s first issue in Cause Nos. 12-17-00321-CR and
12-17-00322-CR, he argues that the evidence found in the U-Haul should have been suppressed
because the vehicle was under police control and officers did not obtain a warrant before searching
the U-Haul.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
1
The January 2017 offense was assigned Cause No. 12-17-00323-CR on appeal. The February 2017 firearm
case was assigned Cause No. 12-17-00321-CR, and the February controlled substance case was assigned Cause No.
12-17-00322-CR. Appellant submitted one brief addressing Cause No. 12-17-00323-CR and another addressing Cause
Nos. 12-17-00321-CR and 12-17-00322-CR.
2
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact and
judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).
Accordingly, a trial court may choose to believe or disbelieve all or any part of a witness’s
testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We uphold a trial
court’s ruling on a motion to suppress under any legal theory supported by the facts. Alford v.
State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013).
January 2017 Offense
At the suppression hearing, Detective Smith testified that in response to discovering the
registration sticker on Appellant’s vehicle belonged to another vehicle, he placed Appellant in
custody. On cross-examination, defense counsel pointed out that in the video of the arrest, Smith
indicated that he was arresting Appellant because his registration sticker was “fake.” Defense
counsel further noted that the offense of displaying a fictitious registration insignia is a Class B
misdemeanor and is distinct from the offense of displaying a registration insignia that is assigned
to another vehicle, which is a misdemeanor punishable by a fine only. 2 In his closing argument
and in the written motion to suppress, defense counsel argued that Appellant’s arrest was based on
a mistake of law because Smith said he was arresting Appellant for a Class B offense but he was
guilty of a fine-only misdemeanor. Consequently, he argued that the evidence found during the
search should be suppressed because the arrest was not lawful “as thought by the officer.” The trial
court denied the motion to suppress, concluding that the arrest was “based on probable cause to
believe [Appellant] committed the offense of displaying a registration sticker assigned to a
different motor vehicle in the officer’s presence.”
On appeal, Appellant argues that the evidence should be suppressed because the reason for
the traffic stop concluded before the search occurred. See Rodriguez v. U.S., 135 S. Ct. 1609,
1614, 191 L. Ed. 2d 492 (2015) (Authority for seizure ends when tasks tied to traffic infraction are
2
See TEX. TRANSP. CODE ANN. § 502.475(a)(1), (a)(4), (b), (d) (West 2013).
3
or reasonably should be completed). He contends that Detective Smith should have released him
after determining he was guilty of only a Class C offense. However, a peace officer may arrest an
offender without a warrant for any offense committed within his presence or view. TEX. CODE
CRIM. PROC. ANN. art. 14.01(b) (West 2005). Arrests for even very minor offenses committed in
an officer’s presence do not violate the Fourth Amendment as long as they are based on probable
cause. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d
549 (2001). Here, the undisputed fact that Smith saw Appellant commit the offense of displaying
the wrong registration insignia gave him probable cause for a lawful arrest. Therefore, the trial
court did not abuse its discretion by denying the motion to suppress the evidence found on his
person. Accordingly, we overrule Appellant’s first issue in Cause No. 12-17-00323-CR.
February 2017 Offense
At the suppression hearing, Officer Holland testified that he looked through the passenger’s
side window of the U-Haul with a flashlight and saw a partially open backpack. Inside the
backpack, he could see a Ziploc bag containing a substance he believed to be methamphetamine.
He then looked through the driver’s side window and saw the muzzle end of a handgun. Holland
was aware that Appellant had a parole violation warrant and was therefore a convicted felon.
Holland eventually entered the vehicle and retrieved the contraband.
On cross-examination, defense counsel questioned Officer Black and Officer Holland
regarding how many officers were involved with the case that night. Black testified that “probably
quite a few” officers were at the scene, but could not say who or how many were there. Holland
testified that he remembered seeing seven specific officers at the scene, including himself. Defense
counsel further questioned the officers regarding the police department’s vehicle search policy.
Apparently reading from the policy, defense counsel stated, “When practical, and if the imminent
destruction or removal of property appears unlikely, a search warrant should be obtained if
necessary and practical. And [sic] officer may guard the property until a search warrant can be
executed.” Black responded, “Okay,” and acknowledged that no search warrant was obtained
before Holland entered the vehicle.
In its closing argument, the State argued that the warrantless search was lawful under both
the plain view exception and the automobile exception. In his closing argument and the written
motion to suppress, defense counsel argued that the search was unlawful because no exigent
circumstances existed and the police department’s guidelines were violated. The trial court denied
4
the motion to suppress, concluding that “[t]he search of [Appellant’s] U-Haul truck was valid and
supported by Officer Holland’s plain view observation of evidence that a crime was being
committed[.]”
On appeal, Appellant argues that the evidence found in the U-Haul vehicle should be
suppressed because the search was unreasonable. He contends that the search was unreasonable
because twelve police officers were involved in the case and the police department’s policy
recommends obtaining a warrant before searching a vehicle. Appellant further argues that the
plain view exception to the warrant requirement does not apply because it was not immediately
apparent that the tip of the handgun was contraband.
We uphold the trial court’s denial of the motion to suppress in these cases, but not under
the theory on which it based its ruling. See Alford, 400 S.W.3d at 929. The trial court concluded
that the search of the vehicle was lawful under the plain view exception. We disagree. Seizure of
an object is lawful under the plain view exception if three requirements are met. Keehn v. State,
279 S.W.3d 330, 334 (Tex. Crim. App. 2009). First, the law enforcement official must lawfully
be located where the object can be plainly viewed. Id. Second, the incriminating character of the
object in plain view must be immediately apparent to the official. Id. Third, the official must have
the right to access the object. Id.
Under the court of criminal appeals’s reasoning in Keehn, the third requirement is not met
in this case. See id. at 335. In Keehn, a police officer looked through the windows of a van parked
in the driveway of a home where he was conducting a theft investigation and saw a propane tank
that appeared to contain anhydrous ammonia. Id. at 332. The police subsequently entered the van
and seized the tank without a warrant. Id. The court of criminal appeals held that the search and
seizure were not lawful under the plain view exception because the police had no lawful right to
enter the van under that doctrine. Id. at 335. Likewise, although Officer Holland was lawfully
located at the car wash, and the incriminating character of the gun and the methamphetamine were
immediately apparent to him, he had no lawful right to enter the U-Haul under the plain view
doctrine. See id.
However, like the police in Keehn, Officer Holland had a lawful right to enter the U-Haul
under the automobile exception. See id. at 336. Under the automobile exception, law enforcement
officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable
cause to believe that it contains contraband. Id. at 335. Here, the record supports a finding that
5
the U-Haul vehicle was readily mobile. Appellant told Officer Black that he was taking the vehicle
from Bullard to Lake Palestine, and the surveillance video showed the vehicle driving into the car
wash. Furthermore, the record supports a finding that Officer Holland had probable cause to
believe the vehicle contained contraband. Holland testified that he observed a substance that
appeared to be methamphetamine in a Ziploc bag and the “very pronounced and obvious muzzle
end of a 1911 pistol.” Moreover, while Holland was en route to the scene, Black informed him
that Appellant had a parole violation warrant, thus apprising Holland of the fact that Appellant was
a convicted felon. We conclude that the search and seizure were lawful under the automobile
exception. See id. at 336.
Furthermore, Appellant cites no authority for the proposition that the violation of a police
department’s policy renders a search and seizure unlawful under the Fourth Amendment. See TEX.
R. APP. P. 38.1(i) (requiring brief to contain clear and concise argument with appropriate citations
to authorities). Consequently, we conclude that this argument is without merit, and that the trial
court did not abuse its discretion by denying the motion to suppress the evidence found in the
vehicle. Accordingly, we overrule Appellant’s first issue in Cause Nos. 12-17-00321-CR and 12-
17-00322-CR.
JUDGMENT ERROR
In Appellant’s second issue in each brief, he argues that the judgments in the controlled
substance cases state the wrong offense. He contends that the judgments should be modified to
state he is guilty of “possession of a controlled substance with intent to deliver” rather than
“manufacture or delivery of a controlled substance in penalty group 1.” The State argues that
“manufacture or delivery of a controlled substance in penalty group 1” is the correct name of
Appellant’s offenses. We agree with the State.
Under Texas Health and Safety Code Section 481.112(a), a person commits the offense of
manufacture or delivery of a substance in penalty group 1 if he “knowingly manufactures, delivers,
or possesses with intent to deliver” a substance in penalty group 1. TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a) (West 2017). Methamphetamine is a substance in penalty group 1. Id. §
481.102(6) (West Supp. 2017). Thus, possessing methamphetamine with intent to deliver it is one
way to commit the offense of manufacture or delivery of a controlled substance in penalty group
1. See id. §§ 481.112(a), 481.102(6); see also Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim.
6
Ohio App. 2003). Therefore, we conclude that Appellant’s judgments correctly state the offense names.
Accordingly we overrule Appellant’s second issue in each brief.
DISPOSITION
Having overruled Appellant’s first and second issues in each brief, we affirm the trial
court’s judgment.
GREG NEELEY
Justice
Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
7
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 19, 2018
NO. 12-17-00321-CR
JERRY WAYNE JERGER, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0552-17)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 19, 2018
NO. 12-17-00322-CR
JERRY WAYNE JERGER, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0553-17)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 19, 2018
NO. 12-17-00323-CR
JERRY WAYNE JERGER, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0557-17)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.