Opinion
No. 14-06-00476-CR
Opinion filed June 19, 2007.
On Appeal from the County Court, Chambers County, Texas, Trial Court Cause No. 23929-05.
Panel consists of Justices YATES, EDELMAN, and SEYMORE.
MEMORANDUM OPINION
Mike James Shelhammer appeals a conviction for possession of marijuana on the grounds that the trial court erred by denying his: (1) motion to suppress; (2) requests for jury charge instructions on the law of "following too close" and on whether evidence was illegally obtained; and (4) motion to appoint a judge who is a licensed attorney to preside over the trial. We affirm.
A jury found appellant guilty, and the trial court assessed punishment at ninety days confinement.
Motion to Suppress
Appellant's first issue contends that the trial court erred by denying his motion to suppress evidence obtained as a result of an illegal search and seizure because the traffic stop was unreasonable in time and scope.
We review a trial court's ruling on a motion to suppress for abuse of discretion by: (1) viewing the record in the light most favorable to the ruling; (2) affording almost total deference to the trial court's express or implied determination of historical facts and its application of law-to-fact decisions that are supported by the record and turn on an evaluation of credibility and demeanor; and (3) reviewing de novo the application of law-to-fact decisions that do not turn on evaluation of credibility and demeanor. See Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007); State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). A trial court's ruling on a motion to suppress will be sustained if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Dixon, 206 S.W.3d at 590.
A law enforcement officer may lawfully stop a motorist who commits a traffic violation in the officer's presence. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992); Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App. 1982). The decision to stop an automobile is reasonable when an officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000).
A traffic stop is a temporary detention and must be reasonable. See Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984); Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App. 1997). To be reasonable, a traffic stop must last no longer than is necessary to effectuate the purpose of the stop and employ the least intrusive investigative methods reasonably available to verify or dispel the officer's suspicion in a short period of time. See Florida v. Royer, 460 U.S. 491, 500 (1983); Davis, 947 S.W.2d at 243, 245. During a traffic stop, police officers may request information from a driver, such as a driver's license and car registration, and may conduct a computer check for that information as well as a check for warrants. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Crim.App. 2004); Davis, 947 S.W.2d at 245 n. 6. Generally, a traffic stop is not fully resolved until after the computer check of the driver's information is complete. Kothe, 152 S.W.3d at 63-64. However, an officer's actions can become unreasonable if a license check unduly prolongs the detention. Id. at 65. A driver's consent to search the vehicle, if otherwise voluntary, is effective to legalize the search if it is given within the scope of a reasonable traffic stop. See Royer, 460 U.S. at 501. If such a search reveals drugs in the vehicle, the officers may arrest the driver. See Tex. Code Crim. Pro. Ann. art. 14.01 (Vernon 2005).
In this case, State Trooper James Thomas pulled appellant over because he was following too close behind another vehicle. After talking with appellant and obtaining his logbook, Thomas ran a check of appellant's driver's license to make sure it was valid and allowed appellant to operate the tractor-trailer truck. While waiting for the license return, Thomas, because of appellant's unusual conduct during the stop, asked appellant if he could search his truck, to which appellant replied "go right ahead." Thomas then called for back-up to assist in the search of appellant's vehicle. When the back-up officer arrived, Thomas searched the truck and found marijuana in several places inside the truck. Soon after Thomas placed appellant under arrest, appellant admitted to smoking the marijuana.
Failure to follow at an assured clear distance behind another vehicle is a traffic violation. See Tex. Transp. Code Ann. § 545.062 (Vernon 1999). Although appellant does not appear to dispute that the initial traffic stop was permissible, he does cite Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) for the propositions that the trial court, like in Ford, relied on Thomas's conclusions and had no "specific and articulable facts in which to base its denial of the Motion to Suppress." However, unlike in Ford, where the officer gave one conclusory statement, Thomas testified that: (1) he was sitting stationary on the side of the interstate and as appellant approached his location, he observed that he was riding close to the bumper of a white pickup truck; (2) as appellant went by, driving a truck-trailer combination, he was in fact following too close behind the white pickup truck; and (3) appellant was following too close because he was less than two seconds behind the vehicle he was following.
Thomas admits that on certain days, it takes longer to get a driver's license return back. In this case, because it was taking a while to get the return back, Thomas attempted to contact a different dispatcher, but was unsuccessful because of radio problems.
Thomas testified that he found appellant's conduct suspicious and unusual because: (1) it took him longer than normal to pull his truck over; (2) it took him longer than normal to get out of his truck after stopping; (3) appellant appeared very nervous and did not seem to be paying attention to what Thomas was asking him to do; and (4) he continued to move around a lot after Thomas had told him to stand in one spot.
Appellant does not contest the voluntariness of his consent to the search of his vehicle.
Although appellant contends that the detention took thirty-five minutes, his brief does not indicate whether that period includes the time spent searching the truck or, more importantly, at what point during that period Thomas asked to search the vehicle. Because appellant's first issue thus fails to demonstrate that the consent to search was made after a time, if any, at which the detention had become unreasonable in length or scope, it affords no basis for relief and is overruled.
Jury Charge
Following Too Close
Appellant's second issue asserts that the trial court erred by refusing to include in the jury charge his requested charge outlining the elements of the offense of following too close. However, appellant's brief fails to cite any authority or rationale to support this contention. Because the offense of following too close was not the offense for which appellant was tried in this case, or a defense to the charged offense, it is not apparent how such a charge would have been applicable to the case. Therefore, appellant's second issue affords no basis for relief and is overruled.
Illegally Obtained Evidence
Appellant's third issue asserts that the trial court erred by denying his request for a jury instruction on whether the evidence was legally obtained because a fact issue existed as to whether the traffic stop was valid. In any case where the evidence raises a fact issue whether evidence was illegally obtained, Athe jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was [illegally] obtained . . ., then . . . the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). However, such an instruction is required only where conflicting evidence raises a fact issue about how the evidence was obtained. Renteria v. State, 206 S.W.3d 689, 704 (Tex.Crim.App. 2006); Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004).
Apart from asserting the conclusion that a fact issue was raised as to the validity of the stop, appellant's brief provides no elaboration on either what fact issue was raised or what evidence raised it. Accordingly, appellant's third issue presents nothing for our review and is overruled.
Motion to Recuse and Appoint Licensed Attorney
Appellant's fourth issue contends that the trial court erred by denying his motion to recuse and to appoint a licensed attorney to preside as the judge over his trial because "appellant believes" that the denial of a licensed attorney to preside over this case violates his right to a fair trial under section 9 of the Texas Constitution. Although his brief concedes that he was unable to locate any cases directly on point, he contends that "[i]t is inconceivable that a defendant would not be entitled to a licensed attorney Judge to preside over his trial where legal decisions are made concerning Motions to Suppress and whether or not certain a [sic] jury instruction should be given." Because appellant's fourth issue is unsupported by legal authority, it is overruled, and the judgment of the trial court is affirmed.
A county court judge is not required to be a licensed attorney. See Tex. Const. art. V, § 15 ("[t]here shall be established in each county in this State a County Court, which shall be a court of record; and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well informed in the law of the State . . ." (emphasis added)).
The procedures for recusal set forth in Texas Rule of Civil Procedure 18a also apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004); see Tex. R. Civ. P. 18a. When a timely filed recusal motion is filed, a trial court judge has no discretion to take any action other than to either recuse himself or refer the motion for another judge to decide. De Leon, 127 S.W.3d at 5. However, where a motion to recuse fails to comply with the mandatory requirements of rule 18a, such as that the motion be verified, no complaint is preserved on the judge's failure to either recuse or refer the motion. See, e.g., Johnson v. Sepulveda, 178 S.W.3d 117, 118S19 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Bruno v. State, 916 S.W.2d 4, 7S8 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). In this case, although appellant's motion used the word, "recuse," it did not use that term in any true sense or purport to present grounds for an actual recusal. In any event, the motion was unverified, and appellant does not assign error to any failure by the trial court to recuse or refer the motion for another judge to decide. Therefore, that issue is not before us.
Appellant also contends that the trial court violated article 4.17 of the Code of Criminal Procedure by refusing to transfer the case to the 344th District Court of Chambers County. On a plea of not guilty to a misdemeanor offense punishable by confinement in jail, entered in a county court of a judge who is not a licensed attorney, on the motion of the State or the defendant, the judge may transfer the case to a district court having jurisdiction in the county or to a county court at law in the county presided over by a judge who is a licensed attorney. Tex. Code Crim. Proc. Ann. art. 4.17 (Vernon 2005). However, appellant's motion requested only a recusal and appointment of a licensed attorney to preside over the case. Appellant has cited, and we have found, no portion of the record where he requested, or the trial court ruled upon, a motion to transfer under article 4.17. Therefore, this issue is not preserved for our review. In addition, appellant has cited no authority or provided any reasoning to indicate how a refusal to transfer would have been an abuse of the trial court's discretion. See Wolff v. Thornton, 670 S.W.2d 764, 766 (Tex.App.-Houston [1st Dist.]1984, no writ) (stating the legislature's use of the word "may" reflects an intent to leave the question of transfer to the discretion of the county court judge).