Miguel A. Tijerina v. State ( 2006 )

NO. 07-05-0263-CR

NO. 07-05-0264-CR

NO. 07-05-0265-CR

NO. 07-05-0266-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 24, 2006

______________________________



MIGUEL A. TIJERINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NOS. 2004-407714, 2005-408363, 2005-408364 & 2005-408365;

HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Following an open plea of guilty, appellant Miguel A. Tijerina was convicted of four counts of burglary of a habitation and sentenced to 20 years confinement. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We grant counsel's motion and affirm.

In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.-San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant did not file a response. Neither did the State favor us with a brief.

By his Anders brief, counsel raises several grounds that could arguably support an appeal. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). We have found no such grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel's motions to withdraw are hereby granted and the trial court's judgments are affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

dmitted without objection. ⁽⁴⁾ After the hearing, the State Office of Administrative Hearings administrative law judge (ALJ) found in the Department's favor on the pertinent issues listed in section 724.042, and entered an order authorizing the license suspension. ⁽⁵⁾

Tex. Transp. Code Ann. §§ 724.042, 724.043 (Vernon Supp. 2006). Morgan's appeal of the ALJ's decision was heard in the district court. He now appeals the district court's judgment approving the suspension of his license.

Review of the ALJ's decision by the trial court is based on the substantial evidence rule. Tex. Transp. Code Ann. §§ 724.047, 524.041; Mireles v. Texas Dep't of Public Safety, 9 S.W.3d 128, 131 (Tex. 1999).

Morgan raises two issues in his brief on appeal. By his first issue, he contends his arrest was unlawful because Trooper Barrientes' testimony at the license suspension hearing demonstrates he arrested Morgan without a warrant and that none of the circumstances authorizing a warrantless arrest under Chapter 14 of the Code of Criminal Procedure were present. Through his second issue Morgan posits that evidence of the unlawful arrest and his subsequent refusal to provide a breath specimen was inadmissible in the license suspension hearing, preventing the Department from meeting its burden under section 724.042.

The Department responds initially that Morgan's appellate contentions were not preserved for review, and we agree. Via his second issue, Morgan urges the applicability of the exclusionary rule incorporated in article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.23. Citing that statutory provision and Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684 (1961), he contends evidence of his refusal to provide the breath specimen is inadmissible and cannot be used against him to support the findings required under section 724.042. Morgan acknowledges that the license suspension hearing is a civil matter. See Tex. Transp. Code Ann. § 724.048(a)(1) (Vernon 1999) (so stating). Nevertheless, he argues the hearing is "quasi-criminal" in nature, and subject to the Code of Criminal Procedure. He cites no authority for this proposition, and we need not address it in this case. Assuming, arguendo, that Morgan's warrantless arrest contravened the requirements of Chapter 14 of the Code of Criminal Procedure, ⁽⁶⁾ and assuming further that fact would have precluded admission at the license suspension hearing of evidence of his arrest and subsequent refusal to provide the specimen, the record of the hearing reflects no objection to admission of such evidence. As noted, Morgan's counsel affirmatively stated he had no objection to the Department's exhibits. Under our state's criminal jurisprudence, Morgan therefore may not complain on appeal about admission of the evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Reed v. State, 487 S.W.2d 78, 80 (Tex.Crim.App. 1972) (complaint of admission of fruit of warrantless search not preserved). See also Texas Dep't of Public Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex.App.-San Antonio 2002, no pet.) (addressing objection to admission of similar DPS report); Tex. R. App. P. 33.1 (error preservation generally requires timely request, objection or motion in trial court); Tex. R. Evid. 103(a)(1) (timely objection to admission of evidence, or motion to strike, required).

Accordingly, we overrule Morgan's second issue, and find it unnecessary to address his first. The district court's judgment is affirmed.

James T. Campbell

Justice

1. The vehicle that was located matched the description with the exception that its Texas license plate bore the number 78M-XH1 rather than the number 78M-HX1 reported by the liquor store manager.

2. The record includes the Department's form DIC-24, signed by Morgan, documenting his refusal to give the breath specimen. See Tex. Transp. Code Ann. § 724.032 (Vernon Supp. 2006) (providing for a written "refusal report").

3. The offense report contains the facts surrounding Morgan's arrest that we have recited, detailing the trooper's actions and the events that led to his arrest of Morgan. Morgan does not deny on appeal that the facts recited in the report gave the trooper probable cause to believe Morgan was operating a motor vehicle in a public place while intoxicated.

4. The hearing record reflects Morgan's counsel's statement of "no objection" when the Department offered its exhibits.

5. The issues at the administrative hearing included whether: (1) reasonable suspicion or probable cause existed to stop or arrest Morgan; (2) probable cause existed to believe that he was operating a motor vehicle in a public place while intoxicated; (3) he was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) he refused to submit to the taking of a specimen on request of the officer. Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2006).

6. Neither the administrative law judge nor the district court expressly decided this issue.