John Ricky Carter v. State ( 2010 )

Opinion issued July 1, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-01069-CR

JOHN RICKY CARTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 08CR3594

MEMORANDUM OPINION

          A jury convicted John Ricky Carter of the third degree felony offense of driving while intoxicated, third offense or more. See Tex. Penal Code Ann. § 49.04(a) (Vernon 1999), § 49.09(b)(1) (Vernon Supp. 2009). After finding the allegations in an enhancement paragraph true, the trial court assessed punishment at four years’ confinement.  On appeal, Carter contends that the trial court erred by denying (1) his motion to suppress evidence because the arresting officer lacked probable cause to believe that Carter committed a traffic violation, and (2) his requested inclusion of the language of section 544.010(c) of the Transportation Code in the written charge.  We hold that the trial court reasonably could have determined that the arresting officer had probable cause to detain Carter, and the trial court correctly refused Carter’s jury charge request.  We therefore affirm.

Background

In September 2008, Galveston County Sheriff’s Department Deputy Lina parked his patrol car behind a convenience store to observe the intersection of Ninth Street and East Bay Shore Drive in San Leon, an intersection where drivers regularly run the posted stop signs.  After observing the intersection for approximately twenty minutes, Lina saw a small car pull up to the stop sign and stop.  Carter, driving an SUV, also pulled up and stopped behind the stopped car. That car then drove through the intersection.  Carter immediately pulled ahead and turned right onto Ninth Street, without stopping a second time or waiting until the car ahead of him cleared the intersection. Lina agreed with defense counsel that Carter had stopped “one small car length or less than one small car length” from the stop sign, depending on where the car in front of him stopped.

Lina pulled Carter over a block later.  Lina noticed that Carter had a “strong odor” of alcohol, glassy, bloodshot eyes, slightly slurred speech, and was slightly unsteady on his feet.  When asked how many beers he had consumed, Carter responded that he had drunk three or four that day.  Lina then asked Carter to move his SUV forward about thirty feet, which Carter did, although he drove further forward than Lina requested.  Carter displayed six out of six possible clues on the horizontal gaze nystagmus test.  Carter did not complete the walk-and-turn test, and refused to perform any further sobriety tests.  Lina determined that Carter was impaired and arrested him for driving while intoxicated. Carter did not consent to a breathalyzer test.

Carter moved to suppress Lina’s testimony on the grounds that Lina did not have (1) reasonable suspicion to stop Carter, (2) reasonable suspicion for further detention after stopping Carter, or (3) probable cause to arrest Carter for driving while intoxicated.  After Lina testified at the suppression hearing, the trial court stated:

[W]hat I have heard here today is that two cars pulled up to a stop sign and they both went at the same time.  You can certainly argue, I guess, that that’s not against the Code, but that’s certainly unusual behavior.  And in our society, two cars going from a stop sign at the same time is certainly grounds to pull somebody over and certainly merits further investigation and may very well merit a ticket or a citation for running a stop sign.

The trial court denied Carter’s motion to suppress Lina’s testimony.  At trial, defense counsel made the following objection to the written charge:

[T]he only objection I would have is that I asked for an inclusion of the stop sign statute, 544.010 of the Transportation Code to give the jury a guidance [sic] in determining whether or not the police officer had probable cause to stop or reasonable suspicion to stop the vehicle.

The trial court stated that defense counsel could make that argument during closing, but it would not include the requested language in the charge.

Discussion

Probable Cause to Stop

          Carter contends that the trial court erred in denying his motion to suppress Deputy Lina’s testimony because Lina lacked probable cause to believe that Carter committed a traffic violation.  We review the trial court’s ruling on a motion to suppress for abuse of discretion.  Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).  We view the evidence in the light most favorable to the trial court’s ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial judge is the “sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.”  St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  The trial court may choose to believe or disbelieve any part or all of a witness’s testimony.  Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996) (citing Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991)).  We defer to a trial court’s express or implied determination of historical facts, as well as to its application of law to fact questions if those questions turn on the evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We sustain the trial court’s ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case.  Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

          The Transportation Code provides three different stop sign requirements:  (1) if a crosswalk exists, the driver shall stop before entering the crosswalk; (2) if no crosswalk exists, the driver shall stop at a clearly marked stop line; and (3) if no stop line exists, the driver shall stop “at the place nearest the intersecting roadway where the operator has a view of approaching traffic on the intersecting roadway.”  Tex. Transp. Code Ann. § 544.010(c) (Vernon 1999).

          The State is not required to prove that the defendant actually violated a particular statute in order to establish reasonable suspicion or probable cause.  Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1997, no pet.); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001, pet. ref’d) (“First, the State was not required to prove appellant violated a traffic law.  The State only needed to elicit testimony that Officer Beauchamp knew sufficient facts to reasonably suspect that appellant had violated a traffic law.”). Deputy Lina testified that this particular intersection had neither a crosswalk nor a stop line, and thus Carter had to stop “at the stop sign” to properly stop.  As Lina observed the intersection, a small car stopped at the stop sign and Carter stopped behind that car.  As the first car drove away from the stop sign, Carter “pulled behind it without stopping. . . . [I]nstead of [Carter] stopping to make sure the other vehicle was out of the intersection.” Carter did not stop a second time before turning.  For intersections without stop lines or crosswalks, section 544.010(c) provides that the driver shall stop “at the place nearest the intersecting roadway where the [driver] has a view of approaching traffic on the intersecting roadway.”  Tex. Transp. Code Ann. § 544.010(c) (emphasis added).  Because the Transportation Code requires a driver to stop at the place “nearest the intersecting roadway” where he can see approaching traffic, and Carter stopped approximately one car length before the stop sign, we hold that the trial court reasonably could have determined that Lina had probable cause to believe that Carter violated section 544.010(c).

          Carter cites the Fort Worth Court of Appeals’ decision in Fowler v. State for the proposition that reasonable suspicion of a traffic violation cannot be based on an officer’s mistaken understanding of the traffic laws.  266 S.W.3d 498, 504–05 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing United States v. Granado, 302 F.3d 421, 423 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.)).  The Fowler court noted that an officer’s ignorance of the law does not “rise to the level of reasonable suspicion,” and holding otherwise “would transform the Fourth Amendment’s objective standard into a subjective standard dependent on the whims of the police’s ‘understanding’ of the law.”  Id. at 505.  Carter contends that Lina’s belief that, in the absence of a crosswalk or stop line, Carter had to stop at the stop sign was incorrect, and the Transportation Code only required Carter to “stop at the place where he had a view of approaching traffic on the intersecting roadway.”

The Transportation Code requires that a driver stop in a place where he has a view of approaching traffic on the intersecting roadway.  Tex. Transp. Code Ann. § 544.010(c).  The Transportation Code also, however, requires the driver to stop at the place “nearest the intersecting roadway” where he has a view of approaching traffic. See id.  Lina agreed that Carter could see approaching traffic from his position, but Lina also testified that Carter stopped approximately one car length behind the stop sign and drove through the intersection without waiting for the car ahead of him to clear it.  Carter, therefore, did not stop at the “place nearest the intersecting roadway” where he could see approaching traffic.  The trial court reasonably could have concluded that Lina’s probable cause was not based on a mistaken understanding of section 544.010(c).  The reasoning in Fowler does not apply here.

Denial of Requested Statutory Language

          Carter contends that the trial court erred by failing to include the language of section 544.010(c) of the Transportation Code in the written charge.  When reviewing a jury charge, we first determine whether error exists, and if so, then we determine whether the error is harmful.  See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If, as here, the defendant properly objects to the charge, we will reverse the conviction if the error constitutes “some harm.”  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

The Code of Criminal Procedure requires the trial court to deliver to the jury a written charge “distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).  To be entitled to a jury instruction under article 38.23(a) of the Code of Criminal Procedure, the defendant must demonstrate that:  (1) the evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) the contested fact issue is material to the lawfulness of the challenged conduct in obtaining the evidence.  Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). In Madden, the Court of Criminal Appeals approved of an instruction that informed the jurors that no evidence obtained in violation of the constitutions or laws of the United States or Texas shall be considered and continued by stating:

You are further instructed that our law permits the stop and detention of a motorist by a peace officer without a warrant when the officer has reasonable suspicion to believe that a traffic offense has been committed. . . . [I]f you find from the evidence that, on the occasion in question, Officer Lily did have a reasonable suspicion to believe that [Madden] was driving at a speed greater than 55 miles per hour on a portion of the highway with a posted speed limit of 55 miles per hour immediately prior to the stop, then you may consider the evidence obtained by the officer as a result of the detention.

Id. at 508 n.7.  The Court of Criminal Appeals found this instruction “admirable” because it directed the “jury’s attention to the one historical fact—Officer Lily’s reasonable belief or ‘suspicion’ that [Madden] was going faster than 55 m.p.h.—in dispute and tells the jury to decide this fact.”  Id. The Madden Court further held that the defendant must request an instruction on a specific historical fact or facts.  Id. at 511.  The trial court determines what “quality and quantum of facts are necessary to establish reasonable suspicion”—a jury decides only whether the officer’s belief of a particular disputed fact is reasonable.  Id.

          Here, defense counsel lodged the following objection:

Judge, the only objection I would have is that I had asked for an inclusion of the stop sign statute, 544.010 of the Transportation Code to give the jury a guidance in determining whether or not the police officer had probable cause to stop or reasonable suspicion to stop the vehicle.

The objection does not request the jury to apply this statute to particular facts. See Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim. App. 1992) (“[Article] 36.14 requires the judge to provide the jury with both an abstract statement of the law and an application of that abstract statement to the evidence in the case.”).  The objection does not identify any historical fact for the jury to decide.  See Madden, 242 S.W.3d at 512.

Carter presented no evidence that disputes Lina’s testimony that Carter stopped behind a car at the stop sign and then followed that car through the intersection without stopping a second time at the stop sign.  See Madden, 242 S.W.3d at 510 (“The evidence on that fact must be affirmatively contested.”).  No evidence contradicts Lina’s testimony that Carter did not stop at the stop sign, which was the “place nearest the intersecting roadway” from which he could see approaching traffic on the intersecting road.  See Tex. Transp. Code Ann. § 544.010(c).  Because no factual dispute exists whether Carter properly stopped at the stop sign and thus the jury had no historical fact to decide, we hold that the trial court properly refused to include section 544.010(c) in the written jury charge.

Conclusion

We hold that the trial court did not err in denying the motion to suppress evidence and in refusing the requested jury instruction.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Do Not Publish.  Tex. R. App. P. 47.2(b).