Opinion
No. 05-11-00852-CR
Opinion issued December 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 78th Judicial District Court, Wichita County, Texas, Trial Court Cause No. 48429-B.
The Second Court of Appeals was recused from this appeal and transferred this case pursuant to Order of the Supreme Court of Texas, dated June 29, 2011, Misc. Docket No. 11-9122.
Before Justices BRIDGES, RICHTER, and MURPHY.
OPINION
Appellant Curtis Lee Sheppard, Jr. appeals his conviction for possession of a controlled substance and accompanying sentence of 50 years' imprisonment. In four issues, appellant argues the trial court erred by denying appellant's: (1) motion to suppress in violation of Terry and its progeny, (2) challenge for cause when a juror could not unequivocally testify that she could follow the law as it was applied in this case, (3) right to a speedy trial under the sixth amendment to the United States Constitution, and (4) right to a speedy trial under the Texas constitution. We affirm.
Background
Officer Vasquez of the Gang Task Force of the Wichita Falls Police Department testified that, on November 8, 2008, he was on patrol with his partner, Officer Li. While on patrol, the officers spotted a white Ford Crown Victoria ("the vehicle"). Officer Li recognized the vehicle as one associated with a Stephen McGrew, a known gang member and drug dealer. At approximately 6:30 p.m., they observed the driver of the vehicle fail to signal a turn within 100 feet of an intersection. In addition, Officer Vasquez testified loud music was emitting from the vehicle. Based on the two violations, the officers initiated a traffic stop, and appellant pulled over immediately. Officer Vasquez noted the area of the stop was one of "known gang violence." He further testified that, at the time of the stop, he had a concern for officer safety due to the high-crime area, the darkness, the knowledge that gang members and their associates are known to carry weapons, and the ongoing rivalry and recent altercations between two gangs (Kemp Edition Posse Gang and Bloods). Upon approaching the vehicle, Officer Vasquez noticed there was only one occupant-appellant. He then asked appellant for his driver's license and proof of insurance, which was provided by appellant. Officer Vasquez testified he asked appellant for consent to search his vehicle "[k]nowing that this vehicle was associated with a gang member-and [he] also [knew] that gang members and their associates are known to carry weapons in the vehicle." Appellant refused consent to search the vehicle. Officer Vasquez testified that he felt his safety was at risk due to the vehicle association, darkness, possible weapons, and inter-gang violence. Based on risk to officer safety, he asked appellant to exit the vehicle in order to pat him for weapons and to check the lunge area of the vehicle for weapons. In addition, Officer Vasquez stated he was concerned because appellant's clothing was baggy, which made it difficult to see the waistline where weapons could be hidden. Upon appellant's exit from the vehicle, Officer Vasquez conducted a frisk. Even though the temperature was in the "60s," Officer Vasquez noted appellant was sweating profusely, which can be a sign of nervousness. He asked for consent to search appellant's pockets. Officer Vasquez stated he obtained consent to search. During the search, Officer Vasquez located a substance in appellant's pocket. He then handcuffed appellant and pulled out a small baggie in which there was a white powdery substance. Field testing indicated the substance was cocaine, and appellant was arrested. The substance was also lab tested and came back positive for cocaine. Following a trial by jury, appellant was convicted of possession of a controlled substance (1-4 grams), enhanced by his prior convictions, and sentenced to 50 years' imprisonment. This appeal ensued.Analysis
In his first issue, appellant complains the trial court erred by denying appellant's motion to suppress in violation of Terry and its progeny. We review a trial judge's ruling on a motion to suppress by viewing all of the evidence in the light most favorable to the trial judge's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (citing Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). When the trial judge makes explicit findings of fact (as here), we afford those findings almost total deference as long as the record supports them, regardless of whether the motion to suppress was granted or denied. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Garcia-Cantu, 253 S.W.3d at 241. Therefore, the prevailing party is entitled to "the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." Garcia-Cantu, 253 S.W.3d at 241. We afford the same amount of deference to the trial judge's rulings on mixed questions of law and fact, if those rulings turned on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Other mixed questions of law and fact are reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004). In his brief, appellant argues that because Officer Vasquez "illegally extended his detention which led to discovery of drugs then those drugs and statements and consents made after that point are illegal and should have been suppressed." Specifically, appellant contends that having him step out of his car illegally extended his detention since the officers lacked any reasonable suspicion "that he was engaged in any illegal activity when [Officer Vasquez] continued the detention and began a narcotics investigation." We disagree. We first note appellant does not contest the validity of the traffic stop on appeal, acknowledging appellant was pulled over for "failure to signal [a] turn and possibly a noise violation." The United States Supreme Court has determined that once the driver's car is already validly stopped for a traffic infraction, the additional intrusion of asking him to step outside his car is de minimis. Maryland v. Wilson, 519 U.S. 408, 412 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6 (1997) ("[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures.")); see also Rhodes v. State, 945 S.W.2d 115, 118-19 (Tex. Crim. App. 1997). Furthermore, the United States Supreme Court has recognized that the safety of the officer is both legitimate and weighty. Mimms, 434 U.S. at 110. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, 392 U.S. 1, 23 (1968). There is an inordinate risk confronting an officer as he approaches a person seated in an automobile. Mimms, 434 U.S. at 110. That is especially true when, as the trial court found: (1) the place of the stop was a high-crime area; (2) Officer Vasquez knew the area to be one of high gang and drug-trafficking activity; (3) it was dark at the time of the stop; (4) Officer Li was familiar with the car appellant drove and knew it to be associated with McGrew, a known Kemp Edition Posse ("KEP") gang member; (5) Officer Vasquez had encountered McGrew on several occasions and knew McGrew to have been involved with drug trafficking; (6) Officer Vasquez was aware that KEP members often arm themselves with illegal weapons and carry such weapons in their vehicles; and (7) appellant was dressed in very loose clothing, including baggy pants and an over-sized tee shirt that obstructed his waistband. The record before us supports the trial court's findings. See Guzman, 955 S.W.2d at 89. Therefore, Officer Vasquez's request that appellant step out of his vehicle was reasonable. See Mimms, 434 U.S. 106, 111 ("What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.") Lastly, we note appellant consented to the search of his pockets where the cocaine was found. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)). Appellant denies he provided consent. However, Officer Vasquez testified appellant provided consent to search his pockets. In addition, our review of the police car dash cam video provides evidence appellant gave such consent. Therefore, the trial court's finding of fact that appellant provided consent to search his pockets is supported by the record. We defer to the trial court's finding and conclude the trial court properly denied appellant's motion to suppress. See Garcia-Cantu, 253 S.W.3d at 241; Guzman, 955 S.W.2d at 89. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred in denying appellant's challenge for cause when a juror could not unequivocally testify that she could follow the law as it was applied in this case. Specifically, appellant argues prospective juror 11 was subject to a challenge for cause due to her inability to follow the law as stated in article 39.23 of the code of criminal procedure, regarding evidence not to be used (improperly obtained evidence), and the trial court improperly denied the challenge. A party may challenge a prospective juror for cause if the juror demonstrates a bias or prejudice against any of the law applicable to the case on which the defense is entitled to rely. See Tex. Code Crim. Proc. Ann. Art. 35.16 (c)(2) (West 2006). Before a prospective juror can be excluded for cause on this basis, the law must be explained and she must be asked whether she can follow that law regardless of her personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998). The proponent of a challenge for cause has the burden of establishing that the challenge is proper. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). The proponent does not meet this burden until he has shown that the venireperson understood the requirements of the law and could not overcome her prejudice well enough to follow the law. Id. When the record reflects that a venireperson vacillated or equivocated on her ability to follow the law, the reviewing court must defer to the trial judge. Id. (citing Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999); see also Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005) ("We afford the trial court considerable deference, because it is in the best position to evaluate a prospective juror's demeanor and responses.") We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of discretion is evident. Id. The following relevant exchange took place with prospective juror 11:DEFENSE COUNSEL: . . . [W]ould they be able to find someone not guilty based on this kind of technicality? Yes, ma'am?
VENIREPERSON NO. 11: [States name.] I would find it very difficult. I'm not saying I couldn't do it, but I think I would find it difficult.
DEFENSE COUNSEL: Okay. Well, we-we kind of have to know. I hate to have to put you on the spot, but in order to sit in that jury box we've got to know that you're going to be able to follow the law —
VENIREPERSON NO. 11: So you're saying —
DEFENSE COUNSEL:-towards us and the State.
VENIREPERSON NO. 11:-that in a case like this there would be no other evidence?
DEFENSE COUNSEL: In this case-I mean —
VENIREPERSON NO. 11: How did they get past the grand jury with no other evidence?
DEFENSE COUNSEL:-well, this is the evidence-this is the evidence they have. This is the evidence they have. I mean, let's say it was child pornography in the man's home they found. I mean, that's all they have.
They don't have anything else. It's child pornography. I mean, that might be a better example. They find child pornography in the house and that's it. Okay? This is in this man's home on his computer.
The Judge has ordered those-if-you have a question about the search of his computer for those photos. Knowing he had those images on his hard drive, but you have a reasonable doubt about the search, could you say I'm not going to consider those and you're not guilty? And could you follow this-this law?
VENIREPERSON NO. 11: I think I would have to have more than just that.
DEFENSE COUNSEL: So you could not do that? So could you disregard the evidence? I mean, could you disregard the evidence and let a potentially-person who is technically guilty go? Because of the law. Because the search was conducted illegally?
VENIREPERSON NO. 11: If that was all there was. Totally all there was.
DEFENSE COUNSEL: The child pornography —
VENIREPERSON NO. 11: That would not be enough to convict him probably.
DEFENSE COUNSEL:-okay. What do you mean that would not be enough to convict him?
VENIREPERSON NO. 11: Well, then there is no evidence. If you can't count that.
DEFENSE COUNSEL: Exactly. And so that's why your verdict would have to be not guilty.
VENIREPERSON NO. 11: Exactly.
DEFENSE COUNSEL: So could you do that?
VENIREPERSON NO. 11: I don't-I don't know. I mean —
DEFENSE COUNSEL: So you can't tell us —
VENIREPERSON NO. 11:-you know, I don't know if I can do that or not.
VENIREPERSON NO. 11:-okay. So you have doubts about your ability to be able to do that?
VENIREPERSON NO. 11: Yeah. I do.In this exchange, prospective juror 11 was not asked whether she could follow that law regardless of her personal views as required by Jones. 982 S.W.2d at 390. Further, it is not clear from the exchange that prospective juror 11 understood the requirements of the law and could not overcome her bias well enough to follow the law. See Gardner, 306 S.W.3d at 295. At best, the record reflects that prospective juror 11 vacillated or equivocated on her ability to follow the law. We must, therefore, defer to the trial judge's decision and conclude the trial court did not abuse its discretion in denying appellant's challenge for cause with regard to prospective juror 11. Id. We overrule appellant's second issue. In his third and fourth issues, appellant contends the trial court erred in denying his right to a speedy trial under both the United States and Texas constitutions. Appellant argues that the trial court should have dismissed the indictment because the weighing of the Barker factors supports a conclusion that his right to a speedy trial was violated. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (the four Barker factors are: (1) length of delay, (2) reason for the delay, (3) defendant's assertion of the right, and (4) prejudice to the defendant caused by the delay). We apply a bifurcated standard of review, meaning an abuse of discretion standard for the factual components and a de novo standard for the legal components of the trial court's decision. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). Deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from the facts. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). Turning first to the length of delay, the record reflects appellant was initially arrested on November 8, 2008, but his case did not proceed to trial until June 22, 2010 (more than 19 months later). The State concedes, and we agree, that the length of the delay is sufficient to trigger a speedy trial inquiry. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). However, our analysis does not end there. See Barker, 407 U.S. at 530. We next turn to the reason for the delay. See id. Appellant was the only witness at the hearing on the motion to dismiss and testified he was arrested on November 8, 2008 and bonded out. He was later arrested on a parole violation on April 19, 2009 and had been incarcerated ever since. Appellant testified he originally hired attorney Rick Mahler to represent him, but fired him two or three months after his arrest in April of 2009. On June 22, 2009, the trial court granted Mahler's motion to withdraw. The court then appointed Lee Ann Marsh to represent appellant on July 24, 2009. On August 4, 2009, Marsh filed a motion to withdraw, noting the problems she had with appellant. The motion was granted on August 24, 2009. Bruce Harris was then appointed to represent appellant on August 24, 2009. Defense counsel filed a request for speedy trial on August 28, 2009. Appellant made his initial pro se request for speedy trial on October 6, 2009. On December 7, 2009, Harris filed a motion to withdraw based on appellant filing a grievance against him. The motion was granted on December 10, 2009. The public defender was then appointed to represent appellant. On March 11, 2010, the appellant filed a pro se motion to "dismiss" the public defender. On March 17, 2010, he filed a pro se motion indicating he wanted Harris to represent him again. On April. 7, 2010, appellant filed a pro se motion for a Faretta hearing. On May 7, 2010, Harris was appointed to represent appellant as "co-counsel." On June 21, 2010, the public defender filed on behalf of appellant a motion to dismiss for speedy trial violation. Following the hearing on appellant's motion to dismiss, the trial court found as follows:
The Court finds that under the circumstances of this situation where part of the delay has been caused by an arrest in a different county and the situation with going through four attorneys, in effect, that that was reasonable cause for the delay.The trial court denied the motion to dismiss for speedy trial violation. Harris and the public defender represented appellant at trial, which began on June 22, 2010. The record, therefore, reflects the reason for the delay was due, in large measure, to appellant's desire to change attorneys multiple times. When a defendant chooses to change counsel on multiple occasions, effectuating unavoidable delay, we conclude the defendant cannot then benefit from a claim that his right to a speedy trial has been violated. See Fields v. State, 627 S.W.2d 714, 714 (Tex. Crim. App. 1982); Mitchell v. State, No. 05-06-01479-CR, 2008 WL 3318883 * (Tex. App.-Dallas Aug. 12, 2008, no pet.); Williams v. State, No. 14-03-01214-CR, 2005 WL 831713 *6 (Tex. App.-Houston [14th Dist.] April 12, 2005, pet. struck). We, therefore, conclude that the total period of time between the appellant's arrest and his trial is not excessive in view of the reasons for the delay. See Fields, 627 S.W.2d at 721. Moving to the third and fourth Barker factors, the record reflects appellant both asserted a right to a speedy trial and made a claim of prejudice based on the delay. See Barker v. Wingo, 407 U.S. 530. However, appellant's conduct (creating delay) belies the claim he wanted a speedy trial to which he asserted a right. In addition, we cannot analyze whether appellant was prejudiced by the delay when his actions were, in fact, the reason for such delay. Under these circumstances, we conclude it would be improper to allow appellant to benefit from a motion to dismiss for a speedy trial violation. See Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991) ("A request for a change in counsel cannot be made so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice."). The trial court did not abuse its discretion in denying appellant's motion to dismiss based on speedy trial grounds. Munoz, 991 S.W.2d at 821. We overrule appellant's third and fourth issues. Having overruled all of appellant's issues, we affirm the judgment of the trial court.