Opinion
No. 07-19-00204-CR
04-08-2020
JACOB MCCOWIN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2018-404157 , Honorable John J. McClendon, III, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Jacob McCowin appeals his conviction for driving while intoxicated. The sole issue before us involves his motion to suppress evidence acquired as a result of a stop. We affirm.
Background
A local police officer and his training officer parked their patrol unit on the south side of the intersection between US 62 and FM 179 in Lubbock County. The intersection consisted of an overpass under which lay FM179. While facing north, the officer heard the horn within a vehicle being operated by appellant sound twice as it proceeded through the intersection and south on FM179. It was about midnight, and there was no other traffic around, save for an occasional car driving on the overpass. As appellant's vehicle passed, the officer noticed a handicap placard hanging from the rearview mirror. The officer would later testify that "[t]he unnecessary horn honking, no other vehicles in the area, particularly in combination with the fact of the handicap placard, just raised my suspicions that there may be something wrong with the driver in need of assistance or otherwise." So, the officer decided to stop appellant, and upon doing so, encountered signs of appellant's intoxication. That ultimately lead to appellant's arrest.
Two motions to suppress were filed prior to trial. Appellant premised one on the theory that the stop violated his Fourth Amendment right against unreasonable searches and seizures. Through the other, he argued that the statute regulating the use of an automobile horn was unconstitutionally vague and trammeled upon First Amendment protections. The trial court convened a hearing on the motions, received testimony from the officer who stopped appellant, and took the motions under advisement. Thereafter, the State and appellant struck a plea agreement.
While explaining that agreement to the court during the ensuing plea hearing, the litigants revealed appellant's desire to reserve his right to appeal pretrial rulings, including any ruling upon the suppression motions. The court agreed he could do that and so admonished him.
Ultimately, the trial court found appellant guilty and levied the sentence reflected in the plea bargain. So, too did it execute a certificate of right to appeal. Therein, the court noted that, because matters "were raised by written motion filed and ruled on before trial and not withdrawn or waived," appellant retained a right to appeal them.
Through his sole issue, appellant now contends that the trial court erred in refusing to suppress evidence arising from the stop. The grounds underlying the issue do not include the constitutionality of the statute regulating the use of a car horn. Instead, appellant posits that factual circumstances surrounding the stop did not provide the officer justification for making the stop.
Preservation
Our first task is to determine whether appellant preserved his complaint. We do this because the appellate record fails to reveal that the trial court expressly ruled on either motion to suppress. This may be why both appellant and the State posit that the trial court "implicitly" denied the motions.
Of course, the question of an implicit denial could have been avoided by bringing the matter to the trial court's attention while it still retained plenary jurisdiction over the cause. Explicit action speaks clearly while implicit action leaves room for doubt. Nevertheless, a trial court may implicitly overrule a motion or objection. And, whether it did depends upon whether its actions or statements "otherwise unquestionably indicate a ruling." Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006). In assessing this, we may consider such pertinent indicia as the trial court 1) finding appellant guilty, 2) recognizing that appellant reserved his right to appeal, and 3) executing a certificate of right to appeal denoting the appeal arises "on matters that were raised by written motion filed and ruled on before trial," for instance. Id. at 104-05. Those very indicia led the Court of Criminal Appeals to hold, in Montanez, that the trial court implicitly ruled on the motion to suppress, and those very indicia appear of record here.
The trial court at bar accepted appellant's plea and found him guilty after acknowledging his desire to reserve his right to appeal pretrial motions, including the motion to suppress. The appellate record also contains a certificate of right to appeal containing verbiage akin to that in Montanez; within the certificate, the trial court stated matters were raised by pretrial motion "and ruled on before trial." These circumstances lead us to conclude that the trial court implicitly overruled the motions to suppress evidence at issue here.
Disposition
The pertinent standard of review is that described in Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). We apply it here.
Next, Texas statute provides that a "motor vehicle operator shall use a horn to provide audible warning only when necessary to insure safe operation." TEX. TRANSP. CODE ANN. § 547.501(c) (West 2011). Given this edict, "honking a car's horn for a purpose other than safe operation of the car can constitute an offense." Sandlin v. State, No. 02-18-00340-CR, 2019 Tex. App. LEXIS 5182, at *6 (Tex. App.—Fort Worth June 20, 2019, pet. ref'd) (mem. op., not designated for publication).
In Sandlin, an officer heard Sandlin sound his vehicle's horn twice a bit after midnight. Given that no other cars were in the neighborhood, the officer "did not think Sandlin needed to use the horn for a driving emergency." Id. at *1. This led the officer to follow Sandlin, thinking he (Sandlin) may have been trying to get his (the officer's) attention or needed help. Id. at *1-2. Because the officer heard the horn sound twice, did not know why Sandlin engaged the horn, and "could not see any reason why the honks would have been necessary to ensure the car's safe operation," the reviewing court upheld the ensuing detention of Sandlin. In other words, it rejected Sandlin's attack on the trial court's decision to deny his motion to suppress.
Here, the officer heard two horn honks coming from appellant's car around midnight in an area sans other vehicles. He could think of no reason why appellant would engage his horn under those circumstances. So, under the auspices of § 47.501(c), he stopped appellant. Though not binding on us, the decision in Sandlin is nonetheless persuasive. It recognizes the legislature's intent to regulate the use of a car horn. Circumstances like those at bar may reasonably lead a reasonable officer to believe the horn's use exceeded the legislatively imposed restriction; so, an officer perceiving them would have reasonable suspicion, at the very least, to believe a traffic offense occurred. Such a reasonable belief would warrant a temporary detention to investigate the situation, as it did and does here. Should one dislike the statute, he or she has the right to seek its eradication through the legislature or other lawful avenue.
We overrule appellant's issue and affirm the trial court's judgment.
Brian Quinn
Chief Justice Do not publish