Opinion
No. 05-06-01206-CR
Opinion issued March 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 8 Dallas County, Texas Trial Court Cause No. M05-56211-J.
OPINION
Appellant Billy Raymond Carver was charged with driving while intoxicated (DWI). He pleaded not guilty before a jury. After hearing evidence, the jury found appellant guilty. Thereafter, the trial court assessed appellant's punishment at 180 days in the county jail and a $1,000 fine. Imposition of the confinement portion of the sentence was suspended and appellant was placed on community supervision for twenty-four months. Appellant now appeals, presenting only one point of error: "The defendant Billy R. Carver was stopped for following too closely. The statement by Officer Ball is conclusory in that there were no articulable facts given to support his conclusion." Concluding nothing is presented for our review, or in the alternative, that the partial appellate record reflects articulable facts supporting the officer's conclusion, we overrule appellant's sole point of error. We affirm the judgment.
Appellant's brief incorrectly states the trial judge assessed appellant's punishment at 365 days' confinement in the Dallas County Jail.
Appeal
The "Statement of the Facts" portion of appellant's brief in its entirety is: "Mr. Carver was stopped for following too closely on Northwest Highway in Dallas County, Texas. He was traveling approximately 20 miles per hour. The police officer stopped him for following too closely [P. 4, L 17-24; P. 5, L 1-10]." The entirety of appellant's "Arguments and Authorities Under Point of Error Number One" is:Appellant argues that the police officer only stated conclusory statements without any articulable facts to support his conclusion. Ford v. State, 158 S.W.2d 488.
The evidence indicates only that in Officer Ball's judgment Carver was following too closely in violation of Transportation Code § 545.062.(a). The State did not elicit any testimony pertinent to what facts would allow Ball to objectively determine Carver was violating a traffic law in support of his judgment. The record does not support a finding of reasonable suspicion.
For these reasons the appellate [sic] respectfully requests this court to set aside the verdict of the jury."The State reads appellant's complaint that the trial court erred in denying his motion to suppress because the police officer stated only conclusory statements and the State did not elicit any pertinent facts from which it could be objectively determined the traffic stop was lawful. The State then argues appellant has procedurally defaulted with respect to the suppression of evidence. Alternatively, the State argues the trial court did not err because the evidence supports the trial court's implied finding that appellant's car was lawfully stopped.
Preservation of Error
Rule 33.1 of the Texas Rules of Appellate Procedure states:As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Appellate Record
The clerk's record in this case does not reflect defense counsel in this case was appointed; therefore, we must presume he was retained. The partial reporter's record filed by appellant consists of fourteen pages. It is entitled "Trial on Merits [-] Testimony Excerpt: Cross-Examination of Officer James Ball." The supplemental reporter's record referenced in footnote 3 has not been filed in the record of this appeal, as rule 34.6(d) of the Texas Rules of Appellate Procedure permits the State to direct the court reporter to do. Tex. R. App. P. 34.6(d). We, therefore, decide this appeal on the fourteen-page partial court reporter's record before us. See Rowell v. State, 66 S.W.3d 279, 283 (Tex.Crim.App. 2001) (holding that in light of Rule 34.6 and the State's failure to have the record supplemented, the court of appeals was permitted to decide this appeal on the basis of the record that the parties chose to file). Neither the clerk's record nor the partial statement of facts reflects either a written or oral motion to suppress evidence. And inasmuch as only defense counsel's cross-examination of the police officer is provided, no objection to any evidence appears in the appellate record. The record on appeal does not show appellant preserved error in the trial court. Consequently, nothing is presented for our review.Merits
In the alternative, the partial record before us on appeal reflects the following exchange between defense counsel and Officer James Ball:Q. [by defense counsel]: Okay. Now, as I understand it, you were going eastbound — Billy was — Carver — Mr. Carver was going eastbound and you came up behind him, correct?
A. That's correct.
Q. And I guess — and — and it's your opinion that he was following too closely?
A. That's correct.
Q. Okay. And I believe you stated that because you could not see his license tag — or the car in front of him —
A. Right. The defendant was in the middle lane of three lanes. I was in the left lane of the three lanes, and, yeah, he was so close to the vehicle in front of him that I could not see the license plate (emphasis added).The statement italicized above provides articulable facts in support of Ball's conclusion appellant was following too closely. Consequently, even if error should be deemed preserved, we conclude based on the partial record presented on appeal appellant's point of error is without merit. We overrule appellant's sole point of error and affirm the judgment.