State v. Edmund Norman Furley

State v. Furley

IN THE

TENTH COURT OF APPEALS

No. 10-94-207-CR

     THE STATE OF TEXAS,

                                                                                              Appellant

     v.

     EDMUND NORMAN FURLEY,

                                                                                              Appellee

From the County Court at Law

Brazos County, Texas

Trial Court # 2701-93

                                                                                                    

O P I N I O N

                                                                                                    

      The State appeals from an order granting Norman Furley's motion to suppress evidence and brings two points of error. Point one asserts that Furley's statement that a gun was in his car was not the result of an illegal detention and was not obtained in violation of Miranda, the United States Constitution or the Texas Constitution. The State, in point two, asserts that the arrest of Furley and seizure of other evidence did not violate the state or federal constitutions.

      On September 27, 1994, an officer who was participating in a state-funded grant to enforce the safety belt law observed Furley's failure to buckle up and pulled him over. After the officer had informed Furley of the purpose of the detention—i.e., violation of the seat belt law—and obtained Furley's driver's license and insurance information, he asked him, "Is there anything in the car that I need to know about?" Furley truthfully responded, "Yes sir, I have a pistol under my seat." The officer, who then asked Furley to step out of the car, retrieved a nine-millimeter Berretta from under the driver's seat and arrested Furley.

      Furley was charged with unlawfully carrying a handgun. He filed a motion to suppress his statement and the gun, arguing that both were obtained in violation of the United States and Texas constitutions. The arresting officer was the only witness at the suppression hearing. He did not testify that Furley's actions caused him to fear for his safety; rather, he testified that Furley's "unusual actions" created a reasonable suspicion that he had some type of contraband in the car.

      Furley conceded that the initial stop was lawful. However, he argued that the officer further detained him and continued to investigate a different matter after the traffic-stop detention was completed. He claimed that such investigation was without probable cause or reasonable suspicion and that the evidence obtained from it is inadmissible. The court granted Furley's motion to suppress.

      On appeal of a suppression hearing, we consider only the question of whether the court improperly applied the law to the facts. See Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994). We do not disturb the court's factual findings if they are supported by the evidence. Id. at 51-52.

      The validity of a seizure pursuant to a traffic stop is analyzed under Terry v. State of Ohio. Goodwin v. State, 799 S.W.2d 719, 727-28 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2913, 115 L. Ed. 2d 1076 (1991). To comport with the Fourth Amendment to the United States Constitution, an officer's action must be justified at its inception and must be reasonably related in scope to the circumstances that justified the interference in the first place. Terry v. State of Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968).

      As already noted, Furley concedes that the officer was justified in the initial stop. He admitted that he had forgotten to fasten his seat belt. However, he argues that the officer's additional questioning was not reasonably related in scope to the purpose for the stop because the officer had already obtained all necessary information. "The scope of [a] search must be strictly tied to and justified by the circumstances which rendered its initiation permissible." Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983). An investigative detention must be temporary and last no longer than to effectuate the purpose of the stop. Id. One court has held that an officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check of the information, and issue a citation, but when the driver has produced the information, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. U.S. v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988).

      To justify further detention for questioning, an officer must have a reasonable suspicion of illegal transactions in drugs or another serious crime. Royer, 460 U.S. at 498-99, 103 S. Ct. at 1324. The officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. Facts are judged against an objective standard; hunches are insufficient.

      Furley maintains that the officer's asking, "Is there anything I need to know about?," exceeded the scope which justified the initial interference—i.e., the seat-belt violation. Additionally, he asserts that there were no articulated facts to create a reasonable suspicion under the objective test, and that the officer was not entitled to investigate beyond the seat-belt violation.

      The officer testified at length, explaining the chronology of events and Furley's actions that he claims raised a reasonable suspicion to warrant further questioning. The officer testified that Furley's voice inflection and posture indicated that he was nervous. He described Furley's actions:

[H]is upright seated position with his upper body turned to the left with his hands on top of the door, bringing his hands forward in front of his face, rotating his hands, asking permission to go to certain areas of the car after I'd already asked him to retrieve that item.

The officer testified that Furley's actions caused him to have a reasonable suspicion that something was in the car. However, he admitted that he did not have any idea what that something might be. He also testified that Furley's actions, taken independently, would not raise a suspicion of criminal activity, but that he had "run into this type of situation with other persons that have been in my experience—that I've later found out they've spent a large time in a state penitentiary."

      Whether the continued questioning was "strictly tied to" the detention for the seat-belt violation, and whether Furley's actions would have objectively created a reasonable suspicion are both questions of fact for the trier of fact. The trial judge is the sole trier of fact and judge of the credibility of the witnesses at a suppression hearing. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). This court will not disturb the trial court's findings so long as they are supported by the record. See id.

      The evidence supports the court's implied finding that the further detention and questioning of Furley, after the officer had received all necessary information pertaining to the seat-belt stop, was not related to the initial traffic stop and was not based on a reasonable suspicion. Therefore, we find no error in the court's granting the motion to suppress. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441 (1963); Banda, 890 S.W.2d at 51-52.

      Points one and two are overruled, and the judgment is affirmed.

 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed August 23, 1995

Do not publish

ited in the Oil and Gas Lease dated December 18, 2004?

 

  In deciding whether the Shannons and Paul Peyton Barbee reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing.  You may not consider the parties’ unexpressed thoughts or intentions.

 

Answer “Yes” or “No”

 

Answer:       YES     

 

 

 

 

QUESTION NO. 2

 

            Did Paul Peyton Barbee fail to comply with the Oil and Gas Lease dated December 18, 2004?

 

            You are instructed that compliance with an agreement must occur within a reasonable time under the circumstances unless the parties agreed the compliance must occur within a specified time and the parties intended compliance within such time to be an essential part of the agreement.

 

In determining whether the parties intended time of compliance to be an essential part of the agreement, you may consider the nature and the purpose of the agreement and the facts and circumstances surrounding its making.

 

Answer “Yes” or “No”

 

Answer:       NO     

 

            Question 3 asked if the Shannons failed to comply with the lease and was conditioned on a “yes” answer to Question 2; the jury thus did not answer it.

The Shannons tendered a series of special-issue type questions.  During the informal charge conference, the trial court referred to them as “narrow-form” and said that they were “not appropriate.”  In the formal charge conference, the trial court asked the parties for objections, and the Shannons’ attorney stated, “None.”  “Objections must be made before the charge is read to the jury.”  Frost Crushed Stone Co. v. Odell Gear Constr. Co., 110 S.W.3d 41, 47 (Tex. App.—Waco 2002, no pet.).  We therefore must agree with Barbee that the Shannons have not preserved any charge complaints for appeal.[1]  See Tex. R. Civ. P. 274; cf. Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101 (Tex. App.—Eastland 2006, pet. denied).  Thus, we will not review the Shannons’ issues relating to their unpled and unsubmitted affirmative defenses.  We will review their complaints that the evidence is legally and factually insufficient to show that the drafts were timely paid or extended to satisfy the lease’s condition precedent because we believe that whether the time period to pay the drafts was extended was subsumed into Questions 1 and 2.[2]

            Barbee, the Bank teller, and the Bank president all gave clear and compelling testimony about the Shannons’ oral extensions of the time period to pay the drafts, and the Shannons’ conduct matched the occurrence of the extensions.  The Bank’s records evidence the extensions.  The evidence plainly was legally sufficient, and the Shannons’ remarkable testimony that they did not extend the time period, standing alone, does not justify our finding that it is contrary to the overwhelming weight of the evidence

On the Shannons’ claim that the evidence is legally and factually insufficient to show acceptance of Barbee’s tender of payment, it is true that the Shannons refused to accept the cashier’s checks from his bank (Frost).  But Barbee had until June 4, 2005 to pay the drafts, and it is undisputed that those checks arrived at Normangee State Bank, the collecting bank on the drafts, a day or two after May 16, and the Bank accepted and endorsed them.  According to the language on the drafts, Barbee and the Shannons appointed the Bank “escrow agent to hold this draft for the time above specified subject alone to acceptance of payment hereof by the drawer, within said time, and without any right of the drawer, payee or endorser hereof, or said grantors, to recall or demand return of this draft prior to the expiration of the above specified time.”  We agree with Barbee that the Shannons could not have refused to accept Barbee’s timely tender of payment.  We overrule the Shannons’ second issue.

The Shannons’ third issue asserts that the trial court abused its discretion by submitting the declaratory judgment action to the jury as a breach of contract action.  As we held above, they did not preserve their charge complaints for appeal.  This complaint should have been made at the charge conference before the charge was read to the jury.  Otherwise, as we stated above, we believe that the controlling issue relating to whether the drafts were timely paid or extended to satisfy the lease’s condition precedent was subsumed into the inartfully worded Questions 1 and 2 because the draft’s condition precedent language must be construed along with the lease.  Our review of the record, including the informal and formal charge conferences and closing arguments, leaves no doubt that the trial court and the parties understood that Questions 1 and 2 involved whether the condition precedent was satisfied.  We overrule issue three.

Conclusion

Having overruled all of the Shannons’ issues, we affirm the trial court’s judgment.

 

BILL VANCE

Justice

 

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

(Chief Justice Gray concurs in only the judgment which affirms the trial court’s judgment.  A separate opinion will not be issued.)

Affirmed

Opinion delivered and filed March 26, 2008

[CV06]

---

[1]               Even if the Shannons preserved their charge complaints for appeal, none of their tendered questions on the merits involved a controlling issue on which there was a factual dispute.  At least one question involved an affirmative defense (statute of frauds) that the Shannons had not pled but that they now claim was tried by consent.  However, the Shannons did not assert at the charge conference that their affirmative defenses were tried by consent.  In any event, the Shannons point to no law that the statute of frauds applies to the alleged extensions, while several cases hold that an agreement or consent to an extension of time for payment may be oral.  See, e.g., C & G Coin Meter Supply Corp. v. First Nat’l Bank, 413 S.W.2d 151, 154 (Tex. Civ. App.—Eastland 1967, writ ref’d n.r.e.); Mizell Constr. Co. & Truck Line, Inc. v. Mack Trucks, Inc., 345 S.W.2d 835, 837-38 (Tex. Civ. App.—Houston 1961, no writ); see also Frost Crushed Stone Co. v. Odell Gear Constr. Co., 110 S.W.3d 41, 47 (Tex. App.—Waco 2002, no pet.) (discussing use of promissory estoppel to bar application of statute of frauds and allow enforcement of otherwise unenforceable oral promise).  Also, Barbee’s payment of Don’s $100 subordination fee could be consideration for one or more of the extensions.

 

[2]               In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).  There is legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

In a factual sufficiency review, we consider and weigh all of the evidence, not just the evidence that supports the verdict.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied).  We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust.  Ellis, 971 S.W.2d at 407.  Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof.  Checker Bag, 27 S.W.3d at 633.