in Re Cedric A. Jones ( 2006 )

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NO. 07-06-0219-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 7, 2006

______________________________

In re CEDRIC A. JONES,

Relator

_________________________________

MEMORANDUM OPINION
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Pending before the court is the petition of Cedric A. Jones for a writ of mandamus. Jones requests that we order the Hon. Patrick A. Pirtle, 251st Judicial District, Potter County, to "make a ruling on the motions therein filed on the default judgment." We deny the application for the reasons which follow.

First, rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix.⁽¹⁾ Tex. R. App. P. 52.3(j). The latter must include, among other things, a "certified or sworn copy of . . . [the] document showing the matter complained of." In this case, the document showing the matter complained of would be the motion allegedly filed requesting a default judgment. None was provided to us, however, via appendix or otherwise. Thus, it cannot be said that Jones complied with Rule 52.3(j).

Second, Jones failed to accompany his petition with the requisite filing fee or an affidavit illustrating his inability to pay the fee. See Tex. R. App. P. 20.1(b).

Third, a trial court cannot be found to have abused its discretion until the complainant establishes that the court 1) had a legal duty to perform a non-discretionary act, 2) was asked to perform the act, and 3) failed or refused to do so. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Jones complains of the trial court's failure to convene a hearing and rule upon his alleged motion, application of the foregoing rule would necessarily require him to illustrate that the trial court was aware of the motion. Indeed, one can hardly be faulted for doing nothing if he was never aware of the need to act.

Here, nothing appears of record illustrating that the trial court was afforded or had notice of the motion. Nor does anything appear of record which would allow one to reasonably infer that such notice was given or knowledge was had. Admittedly, Jones stated in the body of his petition that "the motion for default judgment has been recieved [sic] and filed on Febuary [sic] 20' 2006.'" He further states that he "recieved [sic] a confirmation that the motion was filed and the court recieving [sic] the motion." Yet, the identity of the entity with which he filed the instrument is unknown. This is of import because the entity could have been either the district clerk or the trial court. Tex. R. Civ. P. 74 (stating that pleadings, papers and the like shall be filed with the clerk of the court or with the court itself if permitted). If filing occurred with the district clerk, we know of no rule which imputes the clerk's knowledge to the trial court. Thus, it would be incumbent upon appellant to illustrate that the clerk informed the trial court of the motion or that the trial court otherwise obtained knowledge of it. So, merely stating that something was "properly filed" is insufficient basis from which to reasonably infer that the trial court had notice of that something and the need to act on it. And, because the state of the record prevents us from holding that the trial court was aware of the motion, we cannot say that the court abused its discretion in allegedly failing to act on same.

Fourth, and assuming arguendo that the motion is brought to the attention of a district court, the latter has a duty to consider and rule upon it. Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.-Amarillo 2001, orig. proceeding); In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). This is so because the act of considering it is ministerial. Ex parte Bates, 65 S.W.3d at 134-35; Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding), quoting O'Donniley v. Golden, 860 S.W.2d 267 (Tex. App.-Tyler 1993, orig. proceeding). However, the court has a reasonable time within which to act. Id. And, whether that period lapsed is dependent upon the circumstances of each case. Ex parte Bates, 65 S.W.3d at 135. In other words, no bright line demarcates the boundaries of a reasonable time period. Id. Many indicia are influential, not the least of which are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. Id. So too must the trial court's inherent power to control its own docket be included in the mix. Ex parte Bates, 65 S.W.3d at 135; see Ho v. University of Texas at Arlington, 984 S.W.2d 672, 694-695 (Tex. App.-Amarillo 1998, pet. denied) (holding that a court has the inherent authority to control its own docket). Since that power is discretionary, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.-Houston [14th Dist.] 1997, no pet.), we must be wary of interfering with its exercise without legitimate basis. And, since the party requesting mandamus relief has the burden to provide us with a record sufficient to establish his right to same, Ex parte Bates, 65 S.W.3d at 135; Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), Jones had the obligation to provide us with a record establishing that a properly filed motion has awaited disposition for an unreasonable length of time.

The record before us merely illustrates that Jones may have filed his "Motion for Default Judgment" on or about February 20, 2006, that is, a little more than three months ago. Yet, no other evidence touching upon the indicia discussed in the foregoing paragraph appears of record. And, because we do not hold that the district court's failure to act within three months upon a motion being filed per se constitutes unreasonable delay, Jones failed to satisfy his burden of proof.

Accordingly, the petition for writ of mandamus is denied.

Brian Quinn

Chief Justice

1. That Jones acts in a pro se capacity does not relieve him from complying with the rules of appellate procedure. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied).

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NO. 07-08-00338-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 25, 2010

RANDAL C. HALFORD, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-407,318; HONORABLE JIM BOB DARNELL, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pursuant to a plea bargain, appellant Randal Craig Halford plead guilty to felony driving while intoxicated^{^[1]} in exchange for a sentence of seven years confinement, suspended in favor of seven years community supervision. The State later filed a motion to revoke community supervision alleging numerous violations of its terms. On appellant=s plea of Anot true@ to the allegations, the court heard evidence and thereafter revoked community supervision and imposed a sentence of imprisonment for a term of five years. By three issues, appellant contends the trial court erroneously revoked community supervision because it considered evidence obtained in violation of the Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure.^{^[2]}    We affirm.

Background

The allegations against appellant stemmed from a traffic stop on March 20, 2008. The State=s motion to revoke alleged that on that occasion appellant committed violations of the terms of his community supervision that included driving while intoxicated, failing to abstain from alcohol, and operating a vehicle without a Deep Lung Breath Analysis Machine installed.

Appellant filed a motion to suppress the evidence of his intoxication obtained during the March 20 traffic stop, contending the stop was unlawful because it was not based on reasonable suspicion. The record shows the trial court carried the motion with the proceeding but never ruled on it. Instead, the court granted appellant a running objection consistent with his motion during the hearing on the motion to revoke.

At the revocation hearing, a Lubbock police officer testified that at about 10:00 p.m. on March 20, 2008, he noticed a tan Suburban traveling on Loop 289 Adrift off onto the shoulder where about three-quarters of the vehicle width was on the shoulder. The left wheels were almost to the stripe.@ The Suburban continued on the right shoulder for Aseveral hundred feet.@ It was at this time the officer activated his in-car recording system. The court viewed the recording during the officer=s testimony. The officer continued to observe the Suburban and saw it pull back into the right lane of travel and then drift Atowards the center divider dividing it in the left lane. The tires touched that stripe and drifted back over to the right, drifted back onto the shoulder a little bit, and then drifted back, and then exited...@. The officer followed the Suburban onto the access road and saw that Ait continued to drift from the right slowly back to the left, and continued until [he] got to the Quaker traffic light.@ At the intersection, the officer activated his lights. The Suburban continued westbound and stopped about a block later. The officer stated he followed the vehicle before pulling it over Ato confirm that this was a consistent pattern, that he wasn=t on the phone, or distracted by something else in the vehicle.@ The officer acknowledged the night was somewhat windy, but said the wind did not affect his own ability to drive in the proper lane. He also noted there Awas not a lot of traffic on that stretch of the highway.@

The officer testified that appellants actions before he exited the Loop constituted the offense of failure to drive within a single lane.^{^[3]} He also testified that he thought he was Apossibly behind a person who was intoxicated.@

After the Suburban stopped, the officer made contact with the driver, identifying him as appellant. The officer detected an odor of alcohol, observed appellant=s eyes were glassy and watery and his speech was slurred. When the officer asked appellant where he had been, appellant told him he had been at a party where he drank seven or eight beers. He first told the officer he began drinking at 7:30 p.m. but then stated he started at 4:30 that afternoon. The officer conducted standardized field sobriety tests. The results of the tests led the officer to believe appellant was intoxicated. Appellant was arrested and transported to the Lubbock County Jail where he refused to provide a breath test. The police officer also testified that he did not notice a visible ignition interlock device on the Suburban appellant was driving.

Appellant=s probation officer also testified at the revocation hearing. She testified to the allegations against appellant and noted he was driving his girlfriend=s Suburban on the night he was arrested. She testified that the terms of appellant=s community supervision required that he have a Guardian Interlock device on any vehicle he operated. During cross-examination, the probation officer testified appellant was Avery compliant@ with regard to the terms and conditions of his community supervision until this incident.

At the close of the evidence, the court found the State met its burden of proof with regard to the allegations set forth above. The court ordered a pre-sentence report and subsequently heard punishment evidence from a licensed counselor in the field of addictions and co-occurring disorders. Thereafter, the court revoked appellant=s community supervision and sentenced him to five years imprisonment. This appeal followed.

Analysis

Standard of Review

When reviewing an order revoking community supervision, the sole question before this Court is whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979). When more than one violation of the conditions of community supervision is found by the trial court, the revocation order shall be affirmed if one sufficient ground supports the court's order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.‑Fort Worth 2005, pet. ref'd).

The Fourth Amendment protects against unreasonable searches and seizures, including those entailing only a brief detention. See U.S. Const. amend. IV; United States v. Mendenhall, 446 U.S. 544, 551, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980);Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Leach v. State, 35 S.W.3d 232, 235 (Tex.App.BAustin 2000, no pet.);^{^[4]} Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App. 1997). To justify an investigative stop, an officer must have specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the detained person is connected to a criminal activity. See Terry, 392 U.S. at 21-22; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Woods v. State, 956 S.W.2d 33, 34-35 (Tex.Crim.App. 1997). We review the totality of the circumstances to determine if the officer had a particular and objective basis for suspecting wrongdoing. See United States. v. Arvizu, 534 U.S. 266, 273 (2002); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). In evaluating the totality of the circumstances, we use a bifurcated standard of review -- we give almost total deference to the trial court's determination of historical facts that are supported by the record and review de novo the trial court's application of law to facts not turning on credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). If the trial court made no written findings of fact, we assume the trial court made findings of fact that the record supports and those findings support the trial court's conclusions. See Balentine, 71 S.W.3d at 768; Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000).

Application

Appellant argues the only evidence supporting the State=s motion to revoke appellant=s community supervision was obtained after an illegal stop. The State disagrees, noting among other things, the officer observed actions that reasonably led him to believe appellant was driving while intoxicated. The officer therefore had reasonable suspicion to stop appellant and the evidence obtained therefrom was properly considered by the trial court in the hearing on the motion to revoke.^{^[5]}

AErratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated even absent evidence of violation of a specific traffic law.@ James v. State, 102 S.W.3d 162, 171-72 (Tex.App.Fort Worth 2003, pet. refd), citing Cook v. State, 63 S.W.3d 924, 929 (Tex.App.Corpus Christi 2000, no pet.). See also Richardson v. State, 39 S.W.3d 634, 638, 640 (Tex.App.‑Amarillo 2000, no pet.); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.‑Waco 1998, pet. ref'd).

The officer testified to his twenty years experience in law enforcement and his experience dealing with intoxicated drivers. Although his in-car camera was not yet activated when he said he watched appellants vehicle Adrift@ onto the right shoulder of Loop 289 to the point its left wheels were almost to the stripe, the trial court was free to find the description credible. Such a movement at highway speeds is a significant departure from normal driving behavior. The officers further testimony of the Suburbans path is generally confirmed by the video. The vehicle movements the officer described could have been caused by entirely innocent factors. But, based on the totality of the circumstances, including the nature of the movement that first caught the officers attention, the vehicles further drifts from one side of its lane to another, both on the Loop and after its exit onto the access road, the officers experience, and the hour of night, we see no error in the trial courts implicit conclusion the officers suspicion of an intoxicated driver was reasonable. See Curtis v. State, 238 S.W.3d 376, 380 (Tex.Crim.App. 2007) (finding cars weaving in and out of lane several times over short distance, late at night, permitted experienced officer to draw rational inference driver was intoxicated). See also Davy v. State, 67 S.W.3d 382, 393 (Tex.App.‑Waco 2001, no pet.) (drivers actions taken individually -- driving in circles in a parking lot in early morning hours and driving on the road at one‑half posted speed limit close to right side of road insufficient to establish reasonable suspicion of driving while intoxicated but, taken collectively, provided factually sufficient evidence of reasonable suspicion justifying stop). See also State v. Arend, No. 02-03-00336-CR, 2005 WL 994710 (Tex.App.BFort Worth April 28, 2005, pet. ref=d) (mem. op., not designated for publication) (holding experienced officer's observation of vehicle weaving within single lane and its continued weaving as officer followed for forty‑five to fifty seconds provided articulable facts justifying officer's suspicion of intoxicated driver). In its revocation decision, the court properly considered the evidence obtained through the officers traffic stop of appellant. We resolve appellant's first two issues against him.

In his third issue, appellant contends the evidence obtained as a result of the traffic stop could not be used against him under Code of Criminal Procedure article 38.23. He bases the contention on the argument the officer did not have reasonable suspicion to support the traffic stop. Because we have found that the stop was valid, and he does not point to any other asserted violations of law involved in the obtaining of evidence against him, we overrule appellants third issue as well. See Middleton v. State, 9 S.W.3d 428, 432 (Tex.App.BHouston [14^th Dist.] 1999, no pet.) (similarly finding no violation of article 38.23 in absence of Fourth Amendment violation).

We conclude the State proved by a preponderance of the evidence appellant violated the terms and conditions of community supervision. The trial court did not abuse its discretion in revoking appellant's community supervision and sentencing him to five years confinement in the institutional division of the Texas Department of Criminal Justice. We affirm the trial court's order.

                                                                                                                                                James T. Campbell                                                                                                                                     Justice

Do not publish.

^{^[1]} See Tex. Penal Code Ann. ' 49.04 (Vernon 2003); Tex. Penal Code Ann. ' 49.09 (Vernon 2007).

^{^[2]} See U.S. Const. amend. IV; Tex. Const. art. 1, ' 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

^{^[3]} See Tex. Transp. Code Ann. ' 545.060(a) (Vernon 1999) (providing in pertinent part, A(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely@).

            On appeal, in addition to arguing the officers suspicion appellant failed to maintain a single lane of traffic was reasonable, the State takes the position the officers testimony supports a reasonable suspicion appellant violated § 545.058 of the Transportation Code, concerning driving on the improved shoulder. See Tex. Transp. Code Ann. § 545.058 (Vernon 1995). Because we conclude the State is correct the officers traffic stop was justified by a reasonable suspicion appellant was driving while intoxicated, we need not address either of the States traffic code violation arguments.

^{^[4]} Article 1, ' 9 of the Texas Constitution provides no further protections than the standards articulated in Terry. We will therefore address together appellant=s contentions under the United States and Texas Constitutions.

^{^[5]} The State does not question the applicability of the exclusionary rule, or of article 38.23, to revocation proceedings, and we assume their application here. See Davis v. State, 576 S.W.2d 378 (Tex.Crim.App. 1978) (excluding evidence in probation revocation proceeding); Neal v. State, 862 S.W.2d 203, 205 (Tex.App.BHouston [1^st Dist.] 1993, no pet.) (stating article 38.23, which applies to Athe trial of any criminal case,@ can be used in a probation revocation hearing to suppress illegally obtained evidence). But cf. Hernandez, 60 S.W.3d at 108 (Cochran, J., concurring) (questioning whether federal exclusionary rule necessarily applies at punishment stage of trial); George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure, Vol. 40, § 4.02 (2^nd ed. & Supp. 2009-2010) (noting Judge Cochrans opinion in Hernandez and stating not entirely clear whether evidence inadmissible to prove guilt may be used for other purposes).