NO. 07-01-0197-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 20, 2002
______________________________
THE STATE OF TEXAS,
Appellant
v.
JAMES ROBERT GLEASON,
Appellee
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 41,827-A; HON. RICHARD DAMBOLD, PRESIDING
_______________________________
Before QUINN and JOHNSON, J.J., and BOYD, S.J. (1)
The State of Texas appeals from an order granting the motion of James Robert Gleason (Gleason) to suppress evidence. The evidence sought to be suppressed was obtained as a result of a traffic stop by a police officer. Through two points of error, the State alleges that the trial court erred because it 1) "failed to consider all the evidence presented" at the suppression hearing and 2) misapplied the law to the facts. We affirm.
Background
The only evidence offered at the suppression hearing consisted of testimony by Officer Mike Martinez, i.e. the officer who stopped Gleason. According to the officer, Gleason's car had been "weaving from side to side inside the lane" as it drove down a four lane road. The vehicle was then seen crossing over the yellow center-stripe which lay to Gleason's left and divided his lane from oncoming traffic. Gleason supposedly "corrected his action and when he did so he crossed the white dotted line that separated" his lane from the one to his right. Thereafter, Gleason allegedly traveled on for several blocks before moving into the right hand lane, stopping at an intersection apparently requiring no stop, and turning right. The officer testified that in completing the maneuver, Gleason turned wide and ventured into the "oncoming traffic lane."
Upon cross examination, however, the officer's testimony changed. No longer did he say that Gleason's car crossed the yellow stripe. Instead, he admitted that it merely "touched" the yellow line "momentarily" and then moved away from it without any "jerking" motion. As to crossing the "white dotted line" to his right, the officer conceded that Gleason did not do so until a block or more after the yellow line was momentarily touched and that he recovered in a way which Martinez termed as "nothing notable." Martinez also stated that there was no other traffic about, that he did not feel himself in danger due to Gleason's driving, and that Gleason maintained a consistent speed within the limit assigned to the road until effort was made to turn right. And, when that right turn was attempted, Gleason activated his turn indicator to signal. Whether Gleason stopped before turning then became the subject of a dispute, which dispute resulted in the officer stating that he had testified in an administrative hearing that Gleason did not stop but merely slowed before turning. Finally, Martinez conceded that 1) the turn may have been wide to avoid cars parked along the curb, though he could not recall if there were any such cars present, 2) he stopped Gleason merely due to his alleged "failure to maintain a single lane," and 3) "based on everything [he] had observed . . . up to the point that [he] engaged [his] emergency equipment . . . [he] did [not] have any suspicions about . . . [Gleason] before approaching him."
Upon hearing the evidence, the trial court stated that:
It appears that the reason for the stop was failure to drive in a single lane. I cannot find a traffic violation on that based on the testimony. Apparently, if he had crossed the double stripe that would have constituted a separate violation, but it's unclear to the Court that he crossed or merely touched it. There are no inarticulable facts giving rise to a suspicion, because the officer testified that he had no suspicions.
(Emphasis added). The court's allusion to the want of suspicion on the part of the officer was later memorialized in its findings of fact and conclusions of law. In them, the trial court found, among other things, that Gleason had "momentarily touched the yellow line," crossed the white dotted line approximately a block to a block and a half after touching the yellow line, and returned to his lane "without any notable observation." So too did he find that no one was in the lane to Gleason's right when Gleason entered it, the extent to which Gleason entered the lane to his right was unknown, the officer did not feel endangered by Gleason's conduct, the officer stopped Gleason solely for Gleason's purported failure to maintain a single lane, and the officer had "no other suspicion about the driver at the time of the stop . . . ."
Standard of Review
The standard of review applicable to issues like that at bar is well-settled. Instead of reiterating it, we cite the parties to State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.1997); Benitez v. State, 5 S.W.3d 915 (Tex. App.--Amarillo 1999, pet. ref'd); and State v. Clemmer, 999 S.W.2d 903 (Tex. App.--Amarillo 1999, pet. ref'd) for an explanation of it.
Application of Standard
Point One - Trial Court failed to consider all of the evidence.
As previously mentioned, the State initially contends that the trial court erred in failing to consider all of the evidence before it. The evidence which it purportedly failed to consider is that indicating Gleason turned in an illegal manner. Furthermore, the turn was allegedly illegal because he failed to make it "as closely as practicable to the right-hand curb or edge of the roadway." See Tex. Transp. Code Ann. §545.101(a) (Vernon 1999) (stating that a right-hand turn must be made in that manner). And, had the trial court considered that evidence, it would have been obligated to find that the officer had a legitimate basis to stop Gleason, concludes the State. We overrule the point.
Needless to say, the trial court, as factfinder, was free to believe or disbelieve all or any part of the testimony imparted by the sole witness. State v. Ross, 32 S.W.3d at 855. This was especially so given that his testimony was not free from contradiction. Simply put, because the officer contradicted or retracted his prior testimony in various material ways while undergoing cross-examination, the trial court was free to discredit what the officer said about the turn. So, contrary to the State's supposition, it was not obligated to consider that evidence. For us to hold otherwise would be for us to implicitly overrule the holding by the Court of Criminal Appeals in Ross; that we cannot do.
Or, it may be that the trial court believed the officer when he said that 1) he stopped Gleason simply for failing to stay in one lane, 2) he did not suspect Gleason of anything else, and 3) Gleason may have turned as he did to avoid cars parked along the curb. (2) And, if the officer indicated that he did not interpret Gleason's actions as violative of other traffic regulations, the court was free to consider that assessment in resolving what actually occurred. In short, it may be that the trial court actually considered that evidence and reasonably interpreted it in a way other than that desired by the State.
Point Two - Trial Court's failure to properly apply the law to the facts.
In its second and last issue, the State claims that the trial court misapplied the law. That is, it believes that the trial court should have applied precedent involving stops wherein an officer saw the detainee cross the yellow line dividing opposing lanes of traffic. Instead, the court followed authority applicable to situations wherein an officer merely saw the detainee weave within a lane of traffic in a safe manner. And, because the trial court allegedly followed the wrong line of authority, it erred. We again overrule the point.
The precedent to which the State alluded is Texas Dept. Public Safety v. Chang, 994 S.W.2d 875 (Tex. App.-Austin 1999, no writ). There, the court held that the officer had legitimate basis to stop Chang since Chang had crossed the center line of the roadway. Id. at 877. Indeed, statute requires one operating a vehicle on a road having four or more lanes "and providing for two-way movement" not to drive left of the center line, except in certain situations. Tex. Transp. Code Ann. 545.051(c). Yet, the trial court at bar found that Gleason merely touched the yellow centerline momentarily, not that he crossed it. And, to the extent that it did not find that Gleason crossed it or otherwise drove left of the center line, the holding in Chang is inapplicable to the circumstances before us.
Rather, our situation is akin to those in Hernandez v. State, 983 S.W.2d 867 (Tex. App.-Austin 1998, pet. ref'd) and State v. Cerny, 28 S.W.3d 796 (Tex. App.-Corpus Christi 2000, no pet.). They held that drifting from a lane constitutes a violation of traffic regulations, namely Tex. Transp. Code Ann. §545.060(a), and justifies a stop when the movement is unsafe or made in an unsafe manner. State v. Cerny, 28 S.W.3d at 801; Hernandez v. State, 983 S.W.2d at 872-73. Yet, before us is no evidence of record indicating that Gleason's drift from his lane was unsafe or made in an unsafe manner. Again, there were no other cars around save for the officer's, and, the officer did not feel himself endangered. Moreover, Gleason corrected the drift in a way which did not arouse concern in the officer. Thus, the circumstances before the trial court fell within the ambit of Hernandez and Cerny. So, it had legal and factual basis upon which to hold that the traffic stop conducted by the officer was improper.
Accordingly, we affirm the order granting the motion to suppress. Pursuant to Rule 2 of the Rules of Appellate Procedure and in order to expedite the decision, we suspend the operation of Rule 39.9 of the Rules of Appellate Procedure to permit submission of the case prior to the expiration of the 21-day notice provided for in that rule.
Brian Quinn
Justice
Do not publish.
1.
Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
2.
had received a plea offer and was contemplating whether to accept it and plead guilty. So too did the trial court state that it would "prefer" that the defendant plead guilty. Though appellant objected to neither comment at trial, he complained of them on appeal. The intermediate court concluded that because no contemporaneous objection was uttered, the error was waived. However, the Court of Criminal Appeals reversed the decision, holding that the error was fundamental and outside the scope of Rule 33.1. Id. at 132. In so holding, the court did not state that each instance of misconduct by the trial judge constituted fundamental error nor did it overrule its prior holding in Brewer. Rather, four of those voting to reverse deemed the comments to taint the presumption of innocence while the fifth and sixth judges believed that they denied the accused his right to an impartial judge or an impartial tribunal, respectively. Saldano v. State, 70 S.W.3d 873, 889 n.72 (Tex. Crim. App. 2002). While the scope of Blue is far from certain, a statement to the jury panel that the mere fact of an indictment means there is a 20-30% chance the defendant is guilty would appear to fall within its parameters in tainting the presumption of innocence. We therefore find that it was not necessary for appellant to complain at trial to preserve error on appeal. Further, because the comment tainted the presumption of innocence, the error was of constitutional dimension. See Blue v. State, 41 S.W.3d at 132.
The only error categorically immune from harm analysis is federal constitutional error labeled as "structural" by the United States Supreme Court. High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Chavez v. State, 34 S.W.3d 692, 696-97 (Tex. App.--Amarillo 2000), rev'd on other grounds, 91 S.W.3d 797 (Tex. Crim. App. 2002). A structural error affects the framework in which the trial proceeds rather than an error in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991). Structural errors include total deprivation of the right to counsel, an impartial judge, unlawful exclusion from a grand jury of members of the defendant's race, the right to self-representation, and the right to a public trial. Chavez v. State, 34 S.W.3d at 697. A violation of the presumption of innocence has generally been analyzed for harm. See Scott v. State, 80 S.W.3d 306, 309 (Tex. App.--Fort Worth 2002, no pet.); Mendoza v. State, 1 S.W.3d 829, 830-31 (Tex. App.--Corpus Christi 1999, pet. ref'd).
Although the presumption of innocence is a constitutional right, appellant only challenges the violation of state statutes providing for the presumption. We conduct a harmless error analysis of constitutional error by reversing unless we determine beyond a reasonable doubt that the error did not contribute to the conviction while we review all other error to determine if a substantial right has been affected. Tex. R. App. P. 44.2(a) and (b). However, we find the error harmless under either analysis in this particular case.
Immediately after making the contested comment, the trial court informed the venire panel it should not give consideration to the fact there was a grand jury indictment. The charge also included an instruction to the jury that a grand jury indictment is not evidence of guilt and could not be considered in determining guilt. Additionally, it contained an instruction that all persons are presumed innocent, which presumption alone is sufficient to acquit the defendant. Further, appellant gave a statement in which he confessed to the murder. Under these circumstances, we find beyond a reasonable doubt that the error did not contribute to the conviction.
Issue Four - Decision to Testify
Appellant contends in his fourth issue that the trial court improperly advised him against testifying at trial thereby depriving him of due process and equal protection. We overrule the issue.
After appellant's counsel informed the court that he wished to testify against her advice, the court held the following discussion with appellant:
THE COURT: I strongly advise you not to testify in this case.
THE DEFENDANT: Uh-huh.
THE COURT: For one thing, and you may already know this, I admitted your confession into evidence and the jury has heard it.
THE DEFENDANT: Uh-huh.
THE COURT: I may have committed legal error in doing that. And an appellate court, two levels of appellate courts in Texas will look at that ruling very closely to see if I made an error in letting it into evidence. If you testify, that takes away any error on my part. Do you understand that?
* * *
THE DEFENDANT: Yes, sir. Yes, sir.
THE COURT: If I have been wrong, legally in letting that into evidence, then if you testify no appellate court will then look at the error.
THE DEFENDANT: Yeah.
THE COURT: So, essentially, all of the evidence against you is the confession.
THE DEFENDANT: Yeah.
THE COURT: If the appellate courts say that it was wrong to let it in, you become a free man.
* * *
THE COURT: You become a free man. If you testify, they will never look at the confession's admissibility. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you still want to testify?
THE DEFENDANT: This is my problem. May I speak?
THE COURT: Yes.
THE DEFENDANT: It doesn't feel right to me for this - - for this case, for me to wait five, six years so that this case is reopened, because just as they can - - the proof right now, the evidence that they have after some time they can invalidate it. The testimony that I say, the true testimony that I say from my heart can be invalidated, too. This jury could say, why didn't you speak? Because you were guilty. Yeah.
THE COURT: Let me answer him on this. I'm going - - in a little while I'm going to instruct the jury if you don't testify that they are not to consider the fact that you did not testify. Nevertheless, it will be against the law for them to - - to talk about you not testifying.
THE DEFENDANT: Okay.
THE COURT: Do you understand that?
* * *
THE DEFENDANT: Yes.
THE COURT: I'm going to tell them that in a little while, if you do not testify. And it's my opinion that they will respect that instruction from me.
THE DEFENDANT: Okay. If you promise me that, then I'll try to find out - - I'll try to figure out how I can clear this up.
More than anything, for the deceased, for the family of the deceased. Why this person really lost his life. Yeah.
* * *
THE COURT: In return for me instructing the jury that they cannot talk about you not testifying, you're not going to testify. Is that correct?
THE DEFENDANT: That is correct.
THE COURT: Okay. We're going to do that.
THE DEFENDANT: Okay.
[THE STATE]: Your Honor, just based on uh - - on my impression, and I know the State really doesn't have a position in this. However, the fact that he has changed his mind, I'm wondering if it would be prudent to take a short recess, five or ten minutes to allow him time to consider whether this is a voluntary decision. And like I said, I know it's not the State's position, but uh - - I would be concerned on appeal whether this is truly his decision or not.
THE COURT: That's not a bad idea. We have the time to do that. I think in all fairness, we ought to do that. Let me tell him what I'm going to do.
* * *
THE COURT: Mr. Molina, we're going to take a break or recess for about 15 minutes here.
THE DEFENDANT: Okay.
THE COURT: To let you be very, very sure that that's what you want to do now. Okay?
THE DEFENDANT: Okay. That's fine.
THE COURT: So you go think about this, and then we'll talk about it again In 15 minutes. Okay?
THE DEFENDANT: Okay.
* * *
THE COURT: Okay. Mr. Molina, have you had a chance to think it over?
THE DEFENDANT: Yes, sir.
THE COURT: And it's still your decision not to testify?
THE DEFENDANT: Yes, I will not testify.
Appellant argues that the court's reference to its ruling on the admission of his confession was "an inappropriate inducement not to testify" by suggesting that silence is the "best course to pursue in order to overturn the case." A defendant has the right to testify in his own behalf and when it is made clear to the trial court that a defendant wishes to exercise that right, the trial court errs in refusing to allow the testimony. Hebert v. State, 836 S.W.2d 252, 255 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). While trial counsel may offer advice on whether a defendant should testify, the ultimate decision is made by the defendant. Id.
In this instance, we perceive the trial court's comments to be no more than what appellant may well have been advised by his own counsel. Further, the record reveals that appellant's apprehension in not testifying was his fear that the jury would hold that fact against him. Once he was informed by the court that the jury would receive an instruction not to hold his failure to testify against him, he stated he would relinquish that right. Moreover, he was given additional time to consult with his attorney and reaffirm that decision. Nothing in the record indicates the trial court's refusal to allow appellant to testify or that his waiver of that right was not knowing and voluntary. We find no reversible error.
Issue Five - Batson Challenge
Appellant contends in his final issue that the trial court erred in denying his Batson (4) challenge. (5) We overrule the issue.
Standard
After the jury was chosen, appellant complained to the trial court that four of the five prospective Hispanic jurors on the panel were struck by the State. A litigant may not exercise his peremptory challenges in an invidiously discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986). The party asserting that discrimination has occurred must establish a prima facie case of the same. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Should the movant fulfill that duty, then the party who exercised the strikes must explain why he did so. Id. Moreover, the reasons proffered must be facially neutral. Id. Unless discriminatory intent is inherent in the State's explanation, the reason offered will be deemed race neutral. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995); Ford v. State, 1 S.W.3d 691, 693-94 (Tex. Crim. App. 1999). Once this step has been satisfied, the movant must persuade the court to conclude that his opponent engaged in purposeful discrimination. Ford v. State, 1 S.W.3d at 693. Because the trial court's decision often turns on credibility, we give great deference to the trial court's decision and will not disturb it unless it is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002).
Application of the Standard
The prosecutor gave an explanation for her strike of each Hispanic juror: 1) the first one was struck because she was a school teacher and, from the prosecutor's experience, school teachers tend to favor rehabilitation rather than punishment, 2) the second was a former prosecutor and a current attorney, and the prosecutor did not want an attorney on her panel who might use his own experience and prejudices rather than follow the court's charge, 3) the third made a comment that everyone was capable of murder and the prosecutor feared the juror would identify with appellant, and 4) the fourth was only temporarily employed, causing the prosecutor to feel she was not stable in the community, and she was fluent in Spanish.
Striking a juror because of his or her occupation and counsel's opinions of the views and attitudes associated with that occupation is a facially neutral explanation. Tompkins v. State, 774 S.W.2d 195, 205 (Tex. Crim. App. 1987), aff'd, 490 U.S. 754, 109 S. Ct. 2180, 104 L. Ed. 2d 834 (1989); Brown v. State, 56 S.W.3d 915, 918 (Tex. App.--Houston [14th Dist.] 2001, no pet.). The same is true of the lack of employment, Partida v. State, 133 S.W.3d 738, 742 (Tex. App.--Corpus Christi 2003, no pet.), instability in one's personal life, Herron v. State, 86 S.W.3d at 631, or the possibility that the juror might identify with the appellant. Gerber v. State, 845 S.W.2d 460, 466 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd).
With respect to the second and third jurors struck, appellant did not provide any evidence of a racially motivated strike. Because the reasons given were facially race neutral and appellant made no attempt to rebut those reasons, we will not review those strikes. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003), cert. denied, ___U.S.___, 124 S. Ct. 2837, 159 L. Ed. 2d 270 (2004); Flores v. State, 33 S.W.3d 907, 926 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).
As to the first and fourth jurors, appellant pointed out the names of two other persons on the panel that were a teacher and a professor respectively who were not struck. Nevertheless, the State had already used all of its peremptory strikes prior to reaching one of those persons, and contended that the other person had given answers that overrode her misgivings about the person being a teacher. As to the juror that was only temporarily employed, appellant pointed out that retired persons were not struck. However, he did not name those persons, and we can perceive a difference in stability between an older person who has worked many years and is currently retired and a person of working age who is not gainfully employed. Further, appellant did not attack the strike of that same person on the basis that she was fluent in Spanish. Therefore, we cannot say that the trial court's ruling was clearly erroneous.
Accordingly, all of appellant's issues are overruled and the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. §75.002(a)(1) (Vernon Supp. 2004).
2. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3. 4. 5.