In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00043-CR ______________________________
RICHARD S. TEURMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 4 Dallas County, Texas Trial Court No. MB00-25432-E
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Richard S. Teurman appeals his conviction for driving while intoxicated. A jury found him guilty, and the trial court assessed punishment at 180 days in jail, probated for a period of two years. The trial court also imposed a fine of $1,250.00. In several points of error, Teurman contends the trial court erred in denying his motion to suppress and in refusing his requested jury instructions. Teurman also contends he is entitled to a new trial because the reporter's record is incomplete. For the reasons set forth below, we affirm the judgment of the trial court.
Although the sufficiency of the evidence is not at issue, we provide the following summary of the proof as a context for our review. On the evening of August 2, 2000, tow-truck driver Michael P. Barnes called the Garland Police Department to report a suspected intoxicated driver. Earlier that evening, Teurman drove his large white 4x4 truck and ski boat in front of Barnes's place of employment. Teurman parked so that his truck and boat blocked both the entrance and the exit of the tow-truck business. Barnes testified he watched Teurman remove a beer from a cooler in the boat and walk back toward Teurman's truck. Shortly thereafter Teurman vomited beside his truck. Barnes also saw Teurman urinating in the parking lot.
Approximately forty-five minutes later, Barnes confronted Teurman, who smelled strongly of alcohol, about moving Teurman's truck out of the parking lot. Eventually, Teurman complied with Barnes's request. After moving his vehicle, Teurman threw an empty beer can from his truck to the ground and retrieved another beer from his cooler. Teurman eventually left the area - ski boat in tow - nearly colliding with another car as he did. According to Barnes, who then followed the truck, Teurman "couldn't hold a single lane and ran one car onto a side street."
As Barnes drove behind Teurman, Barnes saw Teurman run another car off the road into a yard. Barnes then called police. Barnes gave Teurman's location and direction of travel to the 9-1-1 dispatcher and also gave a description of the vehicle. Soon thereafter, J. L. Mohler of the Garland Police Department intercepted Teurman. Officer Mohler observed Teurman change from the left lane of traffic to the right lane of traffic, then back to the left lane of traffic, without signaling. Officer Mohler then stopped Teurman's vehicle.
A. Motion To Suppress.
1. Standard of Review.
In his first point of error, Teurman contends Officer Mohler lacked probable cause to stop Teurman's truck. A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole trier of fact, judge of witness credibility, and arbiter of the weight to be given to testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We examine the evidence in the light most favorable to the trial court's ruling, State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999), and afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856. As no findings of fact or conclusions of law were filed, we will assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. If the trial court's decision is correct on any theory of law applicable to the case, we will affirm the decision. Id. at 855-56.
2. The Terry Framework.
Terry v. Ohio, 392 U.S. 1 (1968), provides the framework for our inquiry into this traffic stop. The question in Terry was whether it is always unreasonable for a peace officer to seize a person and subject him to a limited search unless there is probable cause for an arrest. Id. at 15. The Court held that even though a "stop" and "frisk" is a search and seizure under the Fourth Amendment, Id. at 16-17, such actions by peace officers could be reasonable under the Fourth Amendment. The Court adopted a two-part inquiry to determine the reasonableness of such an investigative detention: (1) whether the officer's action is justified at its inception and (2) whether it is reasonably related in scope to the circumstances that justify the initial interference. Id. at 19-20. In this case, Teurman does not contest the scope of the detention; we will therefore focus our review only on the initial justification for the traffic stop.
3. Initial Justification for Stop.
Under the test's first part, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. In assessing whether the intrusion was reasonable, an objective standard is used. The question is whether the facts available to the officer at the moment of the seizure or search would cause a person of reasonable caution to believe the action taken was appropriate. Id. at 21-22. "The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime." State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.- Fort Worth 1995, pet. ref'd) (citing Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983)). An investigative detention not based on reasonable suspicion is unreasonable and therefore in violation of the Fourth Amendment.
"A tip by an unnamed informant of undisclosed reliability standing alone rarely will establish the requisite level of suspicion necessary to justify an investigative detention." Sailo, 910 S.W.2d at 188 (citing Alabama v. White, 496 U.S. 325, 329 (1990)). The officer must have some indication that the information is reliable, "some additional facts from which a police officer may reasonably conclude that the tip is reliable and a detention is justified." Id. Concerned citizens who present themselves directly to the police officers are inherently more reliable than one who makes an anonymous phone call. Id. A detailed description of the actor's malfeasance, when combined with a statement that the event was observed personally, enhances the informant's reliability. Id.
Teurman argues there was insufficient corroboration of Barnes's complaint to warrant police intervention. We disagree. At the suppression hearing, Officer Mohler testified he received a dispatch of a possible reckless or intoxicated driver running cars off the roadway and weaving. The dispatcher described the truck as a full-size white Dodge 4x4 truck towing a boat. The dispatcher also had the truck's license plate number. The dispatcher's information was based on the description Barnes gave the dispatcher.
When Officer Mohler caught up with the truck a few minutes later, he found a vehicle matching the description he received from the dispatcher. The dispatcher told Mohler the eyewitness had seen the truck weaving in and out of his lane. Mohler observed similar weaving behavior in the white Dodge. The license plate on Teurman's truck matched the one Barnes gave the dispatcher. The truck was towing a boat, just as Barnes reported.
Barnes's information was sufficiently corroborated. Officer Mohler reasonably believed, given the totality of the circumstances, that the white truck towing the boat was the same person reported by Barnes. Officer Mohler took appropriate action by stopping Teurman's vehicle. See Terry, 392 U.S. at 21. Furthermore, given the facts available to Officer Mohler at the time - personally observed weaving, a report of a white truck running cars off the road and the driver having previously consumed alcohol - the officer reasonably believed "that some activity out of the ordinary is occurring or has occurred, [that there was] some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime." See Sailo, 910 S.W.2d at 188. The trial court did not abuse its discretion by denying Teurman's motion to suppress. We overrule Teurman's first point of error.
B. Jury Instructions.
1. Article 38.23 Instruction.
Teurman next contends the trial court erred by refusing to instruct the jury to disregard any illegally obtained evidence in accordance with Tex. Code Crim. Proc. Ann. art. 38.23. "A trial court is required to include an Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained." Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002). If the underlying facts are uncontested, no fact issue exists, and the instruction need not be given. Holmes v. State, 962 S.W.2d 663, 673 (Tex. App.-Waco 1998, pet. ref'd, untimely filed). Nor must a trial court give the instruction if the defendant advances a legal argument, rather than a factual dispute, that the officer lacked probable cause. See Balentine, 71 S.W.3d at 773 (appellant's legal challenge that person sharing apartment lacked legal authority to consent to search not evidence of factual dispute; trial court properly denied 38.23 instruction).
Teurman cites Vrba v. State, 69 S.W.3d 713 (Tex. App.-Waco 2002, no pet.), in support of his claim that the trial court erred by denying the Article 38.23 instruction. In Vrba the defendant testified. Id. at 717. It was Vrba's own testimony that provided evidence of a factual dispute. Id. The Tenth Court reasoned that though the testimony may be self-serving, such evidence still provides a factual dispute requiring the requested charge. Id. at 719. In this case, Teurman did not testify. He presented no evidence to controvert Mohler's corroboration of the concerned citizen's complaint. Therefore, Vrba is inapplicable. Teurman argues a factual dispute exists as to whether Officer Mohler had probable cause to stop Teurman's truck. Officer Mohler saw Teurman change lanes of traffic without using his signal. Mohler had information from a concerned citizen that the driver might be intoxicated. Teurman did not controvert this evidence at trial. Cf. Smith v. State, 65 S.W.3d 332, 342-43 (Tex. App.-Waco 2001, no pet.) (defendant's failure to bring forth conflicting evidence negates requirement for 38.23 charge). Accordingly, the trial court did not err by denying Teurman's requested instruction pursuant to Article 38.23. We overrule Teurman's second point of error.
2. Definitions: Probable Cause and Failure To Maintain a Single Marked Lane.
Teurman also requested the lower court to define the term "probable cause" and the offense of failing to maintain a single marked lane of traffic. Teurman requested these definitions for use in conjunction with the Article 38.23 instruction. On appeal, Teurman presents no additional reasons, independent of the Article 38.23 instruction, as to why these definitions should have been given.
The lower court denied Teurman's requested instructions. We have already found the Article 38.23 instruction unnecessary. It follows that the requested definitions in support of that charge would also be unnecessary. The trial court did not err by denying Teurman's request for definitions of the offense of failure to maintain a single marked lane and the term "probable cause."
C. Incomplete Reporter's Record
In his final point of error, Teurman claims he is entitled to a new trial because the reporter's record is incomplete. The reporter's record in this case originally lacked a transcript of voir dire and closing arguments. After Teurman filed his brief, but before the State submitted its brief, the reporter filed a supplemental record of closing arguments. Therefore, Teurman's complaint with regard to closing arguments is now moot. We, therefore, are to determine only whether Teurman is entitled to a new trial because there is no voir dire transcript.
An appellant is entitled to a new trial under the following circumstances:
- if the appellant has timely requested a reporter's record;
- if, without appellant's fault, a significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceedings were electronically recorded-a significant portion of the record has been lost or destroyed or is inaudible;
- if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and;
- if the parties cannot agree on a complete reporter's record.
Tex. R. App. P. 34.6(f).
Teurman is clearly not responsible for the absence of the voir dire transcript and did nothing to waive its recording or transcription. Tex. R. App. P. 13.1(a). However, none of Teurman's contentions of error implicate any claim of error at voir dire. The voir dire transcript is therefore unnecessary for resolution of this appeal. Tex. R. App. P. 34.6(f)(3). Accordingly, we overrule Teurman's final point of error.
There being no other points of error raised, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date submitted: August 20, 2002
Date decided: September 25, 2002
Do not publish.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00079-CV
______________________________
ANDERSON COUNTY BAIL BOND BOARD, Appellant
V.
DEBORAH LEE SEXTON, Appellee
On Appeal from the 349th Judicial District Court
Anderson County, Texas
Trial Court No. 349-6424
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
This case was tried in the 349th Judicial District Court of Anderson County.[1] The transcription of the hearing on motion for new trial was reported by Jennifer Whitten and was filed with the District Clerk of Anderson County on August 16, 2010, and filed with this Court on November 12, 2010.
Nancy Currie reported the bench trial portion of the record. Her court reporters license was suspended by the Texas Court Reporters Certification Board as of November 30, 2010, before she had filed that portion of the record with this Court. Numerous attempts to obtain Curries notes and have them forwarded to another reporter for transcription have failed.
This Court has determined that the entire reporters record of the bench trial was lost or destroyed and, pursuant to Rule 34.6(f), we contacted the parties by letter dated April 5, 2011, to see if they could agree on the record. Tex. R. App. P. 34.6(f)(4). We have now been informed that the parties cannot agree on the appellate record and that numerous factual issues are addressed in the missing record.
Appellant timely requested the preparation of the entire reporters record, the loss of the record is through no fault of appellant, and the reporters record is necessary for the appeals
resolution. Therefore, pursuant to Rule 34.6(f), we find the appellant is entitled to a new trial. We reverse the judgment and remand this case to the trial court for a new trial.
Jack Carter
Justice
Date Submitted: April 18, 2011
Date Decided: April 19, 2011
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.