Opinion
No. 14-05-00842-CR
Majority and Concurring Opinions filed August 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court at Law Number Eleven, Harris County, Texas, Trial Court Cause No. 1291992. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST (EDELMAN, J., concurring).
MAJORITY OPINION
Appellant Mike Seymour Mount appeals his conviction for the misdemeanor offense of driving while intoxicated ("DWI"). In four issues, appellant asserts that the trial court erred in failing to strike an allegedly biased venire member for cause, and in denying his motion to suppress. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On Saint Patrick's Day 2005, Houston Police Officer Kenneth Dagnault received a police dispatch regarding a possible vehicle theft around 5177 Richmond, involving a white Cadillac pickup truck. A few minutes later, Officer Dagnault saw a pearl-colored Cadillac pickup truck being driven about a half of a block from that location. He followed the vehicle and initiated a "felony stop." The driver of the Cadillac truck, later identified as appellant, pulled the vehicle into a parking lot and stopped. Officer Dagnault, with back-up officers, approached the vehicle with guns drawn. The officers accompanying Officer Dagnault opened the doors of the vehicle and asked that appellant and his companion exit the vehicle. Both men were patted down for weapons, while Officer Dagnault checked appellant's driver's license and the registration of the vehicle. Further investigation revealed that the vehicle was registered to appellant's wife, and, in fact, was not stolen. However, during this investigation, Officer Dagnault detected a strong odor of alcohol on appellant, and noticed that appellant's eyes were red, glassy, and bloodshot. Thus, although the investigation eliminated appellant as a suspect in the unauthorized use of the motor vehicle he was driving, as a result of the stop, appellant fell under suspicion for driving while intoxicated. Officer Dagnault called a DWI unit to come to the scene and test appellant for alcohol intoxication. Officer Stacy Pierce, assigned to the DWI task force, arrived shortly thereafter and attempted to conduct several field sobriety tests, most of which appellant refused to perform. Appellant also refused to consent to a breath test for alcohol, and refused to sign a written acknowledgment that he had received his DWI warnings. Appellant admitted that he had consumed approximately two beers. Officer Pierce concluded that appellant had lost the normal use of mental and physical faculties and placed appellant under arrest. Appellant was charged by information with a misdemeanor DWI offense. At trial, the jury found appellant guilty, sentenced him to three days' confinement in the Harris County Jail, and assessed a $400 fine.II. ISSUES PRESENTED
Appellant asserts the following issues on appeal:(1)-(2) The trial court abused its discretion in denying appellant's (1) request to strike venire member number three, for cause and (2) request for a hearing to further examine this venire member's ability to be fair and impartial.
(3)-(4) The trial court abused its discretion in denying appellant's motion to suppress the fruits of an allegedly unlawful arrest and detention where he was seized and searched without a warrant or probable cause.
III. Analysis
A. Did the trial court abuse its discretion in denying appellant's request to strike venire member number three for cause? In two issues, appellant challenges the trial court's denial of his (1) request to strike venire member number three, Charlotte Ann Denton, for cause, and (2) request for a hearing to further examine Denton's ability to be fair and impartial. During voir dire, Denton explained that she was a death claims analyst. When asked whether her line of work would affect her ability to be fair, the following exchange occurred: Defense Counsel: Venireperson No. 3: Defense Counsel:Venireperson No. 3: Defense Counsel:Venireperson No. 3: Defense Counsel: Does it involve DWI accidents? I'm a death claims analyst. I pay death claims. DWI's? Well, if someone dies, yes, I would. Would that experience affect your ability in this case to — Probably not as long as there wasn't a child involved. Because I have two children, I tend to — "Probably not" does not work. I've got to have a definitive. I always tell people to err on the side of caution. If you are not sure, I always tell them to err on the side of caution. So we'll call you up individually. Later, when the parties were making their peremptory strikes, appellant's counsel objected as follows: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Court: Judge, I'm going to ask that No. 3 be challenged for cause. She was the one who it — I asked her about her job and she does death claims and she said it would probably affect her. I told her that we would bring her up only because of the time element involved. That's denied. Can I bring her up, Judge? That's denied. . . . Just for clarification on the record, my understanding when we started, you were going to allow us to bring them up if we had any questions of them. So that's why I left — I just wanted to be clear on it, I was running out of time and I told her to think about it and we would bring her up, we would have to answer yes or no. I told her "probably" wouldn't be sufficient and I was going to move on it. What I said was if you think it is going to screw up the whole panel, then you can bring them. Also, the question she was toying with was the death of a child. We don't have that. She doesn't know that. Okay. Judge, for the record, I'm going to request an extra peremptory challenge, I'm having to use one of my peremptory challenges on No. 3, juror No. 3, Charlotte Denton. And, by doing so, I'm having to take another juror that I would use a strike on. At this time I'm requesting a challenge and once I submit my strikes and the State submits their strikes, then I would identify the juror that I'm having to take, Your Honor, that I don't have a strike to use on. All right, sir. That will be denied. Judge, I used — I would use the strike that I'm using on Ms. Denton, No. 3, I would use that strike — or, if the Court granted me an extra strike, I would use it on No. 20, Your Honor. He noted to be victim of a DWI. All right, sir. Therefore I wouldn't want him as a juror in this case. All right. We cannot conclude, as appellant suggests, that the answers Denton gave demonstrate that she would be unfair or biased in this case. Denton never said she could not be fair to appellant; she merely indicated that her judgment might be impacted in a DWI accident case involving a child. This case, however, does not involve a DWI accident or injury or death to any person. Bias is an inclination toward one side of an issue rather than to the other. See Hyundai Motor Co. v. Vasquez, 49 Tex. Sup. Ct. J. 420, at *3-4 (Tex. March 10, 2006). Disqualification of a venire member extends to bias or prejudice against the subject matter of the suit as well as against the litigants. Id. at *4. To disqualify a potential juror for bias as a matter of law, the record must show conclusively that the potential juror's state of mind led to the natural inference that she would not act with impartiality. Id. A venire member's indication that she cannot be fair and impartial because her feelings are so strong in favor of a party that she will base her verdict on those feelings and not on the evidence supports a successful challenge for cause. Id. If a prospective juror's bias or prejudice for or against a party in a lawsuit is established as a matter of law, the trial court must disqualify that person from service. TEX. GOV'T CODE ANN. § 62.105(4) (Vernon Supp. 2005); Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998). If bias or prejudice is not established as a matter of law, whether the potential juror is sufficiently biased or prejudiced to merit disqualification is a factual determination the trial court must make using its discretion. Malone, 977 S.W.2d at 564. We do not reverse on appeal in the absence of an abuse of discretion. See Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 95 (Tex. 2005). Deference to the trial court is especially critical when an appellate court is reviewing a record that demonstrates uncertainty in a venire member's responses. Because the trial court is in the best position to evaluate the prospective juror's sincerity and ability to be fair and impartial, the appellate court gives great deference to the trial court. Goode v. Shoukfeh, 943 S.W.2d 441, 453 (Tex. 1997). The record does not conclusively show that Denton's feelings were so strong in favor of a party that she would base her verdict on those feelings and not on the evidence. Although Denton stated that she dealt with death claims (that sometimes resulted from DWI accidents), she affirmatively stated that it probably would not affect her unless there was a child involved. Moreover, the trial court was in a better position to evaluate Denton's voir dire responses than this court, and the trial court specifically stated, in regard to Denton, that "the question she [Denton] was toying with was the death of a child. We don't have that." The trial court was keenly aware of Denton's answers and concluded that she could be impartial in this case. We find no abuse of discretion. See Hafi v. Baker, 164 S.W.3d 383, 385 (Tex. 2005) (concluding that a juror who worked as defense attorney in medical malpractice actions was not biased as a matter of law in medical malpractice action although he suggested that, because of his career as a defense attorney, he could relate to the defendants' perspective); Cortez, 159 S.W.3d at 93 (holding that disqualification of venire member for cause was not required, though during voir dire venire member said that, as an insurance adjuster, he had a better understanding of defendant nursing home owner's side of the case); Kiefer v. Continental Airlines, Inc., 10 S.W.3d 34, 39 (Tex.App.-Houston [14 Dist.] 1999, pet. denied) (holding that potential juror who stated she would give benefit of doubt to airline was not biased as matter of law). Accordingly, we overrule appellant's first issue. Turning now to appellant's second contention, that the trial court erred in failing to grant his request to further examine Denton regarding her alleged bias, we again consider whether the trial court abused its discretion in making this ruling. See Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985) (concluding that the standard by which to review restrictions on voire dire questioning is an abuse of discretion). A defendant enjoys the right to question a panel of potential jurors freely, but the trial court's discretion extends to imposing reasonable restrictions on the amount of time allotted for such questioning. Boyd v. State, 811 S.W.2d 105, 115 (Tex.Crim.App. 1991). Although Denton was employed as a death claims analyst and her job occasionally included handling death claims resulting from DWI accidents, when asked if her line of work would affect her judgment, she replied, "Probably not, as long as there was not a child involved." Appellant requested that Denton be brought up to the bench for further examination. The trial court denied this request but explained its ruling, noting that appellant's case did not involve a death of a child. If the prospective juror states her position clearly, and without reservation, the trial court does not err in refusing to permit further questioning. See White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App. 1981). The trial court did not abuse its discretion in denying appellant's request for further examination of Denton's alleged bias. See Phillips v. State, 701 S.W.2d 875, 889 (Tex.Crim.App. 1985) (concluding that when prospective juror clearly stated that she would hold the State to a higher burden of proof beyond all doubt, the trial court did not error in allowing further questioning), overruled on other grounds by Hernandez v. State, 757 S.W.2d 744, 752 (Tex.Crim.App. 1988); see also Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App. 1975) (concluding that trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors); Ford v. State, 14 S.W.3d 382, 390 (Tex.App.-Houston [14 Dist.] 2000, no pet.) (stating that A[a] trial judge may limit a defendant's voir dire under specific circumstances; that is, where a question commits a venire member to a specific set of facts . . . where the venire member has already stated his position clearly and unequivocally, and where the questions are not in proper form) (emphasis added). We overrule appellant's second issue.B. Did the trial court abuse its discretion in denying appellant's motion to suppress?
In issues three and four, appellant contends that the trial court erred in denying his motion to suppress. More specifically, in issue three, he alleges that the trial court should have suppressed evidence of the DWI offense because the initial detention was unlawful. In issue four, he contends that the motion to suppress should have been granted because the initial detention was actually an illegal arrest and, for this reason, the trial court erred in denying his motion. Appellant asserts that the evidence regarding the DWI should have been suppressed because the initial stop was based upon an erroneous auto theft. We review the trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App. 1991). If supported by the record, a trial court's ruling on a motion to suppress will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex.App.-Houston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We conclude that Officer Dagnault not only had reasonable suspicion to justify an investigatory stop, but also that he had probable cause to justify a warrantless arrest. Shortly after Officer Dagnault received a radio dispatch regarding an auto theft involving a white-colored Cadillac pick-up truck, he observed a pearl-colored Cadillac pick-up truck about a half-block from where that type of vehicle had been reported stolen. Although further investigation revealed that the vehicle appellant was driving was registered to appellant's wife, circumstances had come to the officer's attention in the interim that gave him reason to suspect appellant was violating another law. Deputy Dagnault detected a strong odor of alcohol on appellant's breath and noticed that appellant's eyes were red, glassy, and bloodshot. Thus, even though appellant was not arrested for unauthorized use of a vehicle, the investigation refocused on whether appellant had been driving while intoxicated. Officer Pierce of the DWI task force concluded that appellant had been driving while under the influence of alcohol, which led to appellant's arrest. The general rule is that law enforcement officers may stop and briefly detain people suspected of criminal activity with less information than that required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879, 20 L. Ed.2d 889 (1968). In order to justify an investigative detention, the officer must have specific articulable facts, which, coupled with his experience, personal knowledge, and logical inferences, would warrant intruding upon the detained citizen's freedom. Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989). The validity of the stop is determined by the totality of the circumstances. Id. Appellant emphasizes that the vehicle he was driving was not stolen, and urges that this fact invalidates the initial stop and any investigatory detention. The law, however, holds otherwise. An investigatory detention or an arrest is not invalid merely because an officer relies upon reasonably trustworthy information that later proves to be erroneous. Dancy v. State, 728 S.W.2d 772, 783 (Tex.Crim.App. 1987); Brown v. State, 986 S.W.2d 50, 51 (Tex.App.-Dallas 1999, no pet.) (concluding that although there was no evidence that the vehicle was actually stolen, the officers had probable cause for the warrantless arrest based on the stolen vehicle information on the "hot sheet," thus the contraband found as a result was admissible); Kelly v. State, 721 S.W.2d 586, 587-88 (Tex.App.-Houston [1st Dist.] 1986, no writ) (finding that stop of defendant because officer believed the vehicle was stolen provided the officer with reasonable suspicion to detain defendant regardless of whether the information was shown to be inaccurate or false). Therefore, we first conclude that Deputy Dagnault had reasonable suspicion to justify an investigative stop based on the radio dispatch. See Delk v. State, 855 S.W.2d 700, 704-05 (Tex.Crim.App. 1993) (concluding that fact that car parked outside building was listed on police computer as stolen provided police officers with reasonable suspicion of criminal activity sufficient to permit their investigatory stop of ordering residents from the building to answer questions); Hurtado v. State, 881 S.W.2d 738, 740-42 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (concluding that failure to name defendant on one of outstanding warrants for several persons that operated motor vehicle using a dealer's tag that was on vehicle defendant was driving did not retroactively diminish police officer's ability to stop defendant's vehicle and determine his identity and whether he was subject of one of warrants); Louis v. State, 825 S.W.2d 752, 754-55 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (concluding that evidence supported trial court's finding that police officer's initial stop of a light tan Cadillac was legal when it was the only car on the street where a robbery had occurred and it was reported that the robbery suspects were driving a white Oldsmobile). Appellant further contends that actions the officer took following his initial detention transformed the traffic stop into an unlawful arrest. Appellant points to police conduct in blocking his vehicle and forcing him to place his hands on his vehicle while they searched him for weapons. Presuming without deciding that these facts demonstrate that appellant was arrested when stopped, it was a lawful arrest based upon probable cause. Even though the vehicle appellant was driving was not stolen, Officer Dagnault had sufficient probable cause to stop the vehicle and make an arrest. See Stevens v. State, 667 S.W. 2d 534, 536 (Tex.Crim.App. 1984) (concluding that officers had probable cause to arrest defendant for theft of automobile where they found him driving a vehicle reported as stolen); Clifton v. State, 755 S.W.2d 556, 558 (Tex.App.-Fort Worth 1988, no writ) (stating that police officer had probable cause to stop and arrest defendant based on information by police dispatcher that vehicle believed to be stolen might be found at specific address from which police officer had observed defendant driving away); Moya v. State, 736 S.W.2d 230, 232 (Tex.App.-Corpus Christi 1987, no writ) (finding that broadcast description of robbery suspect was sufficiently particular to give officer probable cause to arrest defendant found shortly after offense in area close to where robbery had just occurred). We conclude that the trial court did not abuse its discretion in denying the motion to suppress. We overrule appellant's third and fourth issues. Having overruled all of appellant's issues on appeal, we affirm the trial court's judgment.CONCURRING OPINION
I would overrule appellant's third and fourth points of error on the ground that: (1) the police officers had reasonable suspicion to make an investigatory stop of appellant's vehicle based on the radio dispatch; (2) the challenged evidence of his intoxication would have been readily apparent in the course of such a lawfully conducted investigative detention; (3) the evidence was therefore not obtained as a result of any conduct in making the stop that could have gone beyond an investigative detention and thereby amounted to an arrest; and, therefore, (4) the challenged evidence was either not within the scope of the exclusionary rule or was subject to the inevitable discovery exception to that rule.