Mark Curtis Richardson v. State

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-03-00036-CR

______________________________



MARK CURTIS RICHARDSON, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee


                                              


On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 025730-A


                                                 




Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter



O P I N I O N


            Mark Curtis Richardson appeals from his conviction, on his plea of guilty pursuant to a negotiated plea agreement, for possession of a controlled substance with intent to deliver. His contentions of error are directed at the trial court's ruling on his pretrial motion to suppress.

            The original hearing on the motion to suppress was conducted four years before the trial. The motion to suppress was overruled after a hearing and after the parties filed briefs on the issue November 24, 1998. On October 31, 2002, a hearing was held on Richardson's motion to reconsider his motion to suppress based on new authority presented to the court. The trial court overruled the motion to reconsider November 6, 2002. Richardson pled guilty on January 10, 2003, and was assessed a twelve-year sentence.

            Richardson first asks this Court to abate the appeal because he was not provided with a reporter's record of the guilty plea proceeding, and argues that one is necessary to complete his brief. We recognize, however, that a trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. There is no suggestion or indication the suppression issue was revisited at the time of the guilty plea. Accordingly, there is no indication that any matter of any relevance to the appeal that may be brought in this situation was addressed in any other context than the hearing on that issue. Under these facts, abatement for preparation of a reporter's record from the guilty plea is unnecessary. The request is denied.

            Richardson contends the trial court erred by overruling his motion to suppress evidence discovered during a search of his vehicle. The record shows Richardson was driving on an interstate highway and was stopped by a policeman (Deputy James Benson), who testified he saw the car swerve onto the shoulder about a foot, for about one or two seconds. He also testified there was another vehicle between his police vehicle and Richardson's vehicle, which was traveling approximately fifteen to twenty feet behind Richardson's vehicle in the inside lane. He thought Richardson's action of driving across the white line was not safe and he was "concerned with . . . them coming back into their lane of traffic and possibly going the other direction." The officer testified he pulled Richardson over for failure to maintain a single lane. Officer Benson testified that, after stopping the car and questioning the occupants (the passenger lied about his name), he asked for—and was given—permission to search the car. As a result of the search, he found cocaine in a box containing dirty clothes.

            Richardson contends the traffic stop was illegal and thus the resulting search was necessarily also illegal. He directs this Court to the recent opinion in Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002), for a discussion of a very similar situation.

            As correctly pointed out by counsel, in this case, as in Corbin, the driver veered onto the shoulder a distance of only about a foot, for only one or two seconds. In our initial opinion in Corbin, we held there was insufficient evidence to indicate from the information that the appellant failed to maintain his lane in an unsafe manner, and thus the stop was unreasonable. The Texas Court of Criminal Appeals did not review our conclusion on that matter, but reversed our determination that the motion to suppress was properly denied because Officer Benson was exercising his community caretaking function in making the stop. Id. at 278–79.

            The stop in this case, as in Corbin, was predicated on evidence of a violation of Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999), which provides that, "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." As we recognized in Corbin, this statute does not provide that any movement over a dividing line between lanes or between a lane and a shoulder is necessarily a criminal offense, but instead presumes a certain degree of common sense will be applied to the observation of the driver's actions by requiring that a driver shall drive "as nearly as practical entirely within a single lane . . . ." and that he or she may not move from the lane unless the movement can be made safely. Tex. Transp. Code Ann. § 545.060(a); Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.—Texarkana 2000), rev'd, 85 S.W.3d 272 (Tex. Crim. App. 2002).

            In our analysis of a traffic stop, the question is whether the State proved the reasonableness of the stop. See Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986). An officer may stop and briefly detain a person for investigative purposes even in the absence of evidence rising to the level of probable cause if the officer has a reasonable suspicion supported by articulable facts which, taken together with rational inferences from those facts, lead him to conclude the person is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).

            In determining whether the intrusion was reasonable, an objective standard is applied. The question is whether the facts available to the officer at the moment of the seizure or search would lead a person of reasonable caution to believe that the action taken was appropriate. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). Because the facts are not in dispute, we make a de novo determination of whether those facts give rise to the requisite "reasonable suspicion."

            The State suggests that, in this case, the speed of the vehicle driven by Richardson was high. However, the officer's testimony clearly shows that Richardson was not exceeding the speed limit and the speed was not extraordinary. The distinction in this and Corbin is that here another vehicle was nearby Richardson's vehicle and the officer testified that moving the vehicle across the lane onto the shoulder was not safe. In Corbin, the stop was in the early morning hours with no nearby traffic. In that case, the driver was driving only fifty-two miles per hour in a sixty-five mile-per-hour zone and went over the line for only about twenty feet. Here, there is evidence another vehicle was following fifteen to twenty feet behind Richardson's vehicle in the inside lane. Richardson's vehicle was in the outside lane closest to the shoulder. Officer Benson testified he thought the movement onto the shoulder was not safe and further said he was "concerned with . . . them coming back into their lane of traffic and possibly going the other direction."

            In Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref'd), the defendant crossed eighteen to twenty-four inches into a lane of traffic one time, "very few" other vehicles were near, the arresting officer thought it was unsafe because he was concerned about the defendant's well-being, but the evidence showed no danger to other vehicles, id. at 868, and there were no objective circumstances (time, location, movement) indicating the driver was intoxicated. Id. at 870. There the Austin court held:

The remaining issue is whether (1) a single instance (2) of crossing a lane dividing line by 18 to 24 inches (3) into a lane of traffic traveling the same direction (4) when the movement is not shown to be unsafe or dangerous, gave [the officer] a reasonable basis for suspecting that appellant had committed a . . . criminal-traffic offense. If it did, the stop was valid . . . . We conclude, however, under the facts of this case it did not.


Id. at 870–71.

            This case is distinguishable from Hernandez because here there is specific testimony about the proximity of another vehicle, leading the officer to conclude the lane change was not safe.

            In Martinez v. State, 29 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd), that court approved a stop of a vehicle that swerved once onto the shoulder of a busy highway. The facts in the Martinez case are very similar to this case. The officer observed the defendant swerve onto the shoulder. The testimony showed that traffic was moderate to heavy. The court concluded it was not unreasonable for the officer to conclude such action was unsafe.

            Although we find this case to be a close call, we conclude that, because the officer testified the movement was unsafe, and because there was another vehicle nearby, the evidence was sufficient for the officer to have a "reasonable suspicion" that Richardson's movement of the vehicle from his lane was not done safely. The contention of error is overruled.

            Due to our disposition of the first issue, it is unnecessary to address the State's alternative argument that the stop was reasonable based on the community caretaking theory.

            We affirm the judgment.

 


                                                                        Jack Carter

                                                                        Justice


Date Submitted:          December 5, 2003

Date Decided:             January 9, 2004


Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00095-CR

                                                ______________________________

 

 

                                   DARRYL GENE HOLLIS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the 115th Judicial District Court

                                                            Upshur County, Texas

                                                            Trial Court No. 15,710

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                      MEMORANDUM OPINION

 

            Darryl Gene Hollis appeals from his conviction on an open plea of guilty to the court of aggravated robbery with a deadly weapon, enhanced to habitual offender.  Hollis also pled true to the enhancements.  The trial court sentenced Hollis to ninety-nine years’ imprisonment.

            Hollis’ attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, providing possible issues, but explaining why they cannot succeed.  Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief and a letter to Hollis on August 30, 2011, informing Hollis of his right to file a pro se response and providing him with a copy of the record for review.  No response has been filed.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. 

            We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue.  See Halbert v. Michigan, 545 U.S. 605, 623 (2005).  We, therefore, agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            We affirm the judgment of the trial court.[1]

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          November 18, 2011

Date Decided:             November 21, 2011

 

Do Not Publish


[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals.  See Tex. R. App. P. 68.3 (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011).  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.