No. 05-09-00300-CR
Opinion Filed April 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 382nd District Court Rockwall County, Texas, Trial Court Cause No. 2-08-491.
Before Justices RICHTER, LANG-MIERS and MURPHY.
Opinion By Justice RICHTER.
Appellant, Travis Spivey, was convicted by a jury of possession of a controlled substance (cocaine) in the amount of 400 hundred grams or more with intent to deliver. Punishment was assessed by the trial judge at thirty-five years imprisonment. The punishment range applicable to the offense was enhanced from fifteen to ninety-nine years to twenty-five to ninety-nine years based upon two prior felony convictions. Appellant pleaded true to the two prior felony convictions used for enhancement. Appellant raises two issues on appeal. First, he contends the trial court erred in denying his motion to suppress, and second, he contends the evidence is insufficient to support enhancement of the punishment. We overrule both issues and affirm the judgment of the trial court.
RELEVANT FACTS
Deputy Bobby Burks, of the Rockwall County Sheriff's Department, stopped the vehicle in which appellant was a passenger for failure to signal a lane change. The stop was recorded by a video camera located in the patrol car and a microphone worn by Deputy Burks. There were two occupants in the vehicle, the driver and appellant. The officer asked the driver, appellant's brother, to step out of the vehicle. The officer explained the reason for the stop and obtained his driver's license. After noticing the vehicle had a Kentucky license plate, Deputy Burks asked the driver why he was in Texas. The driver stated that they were in Dallas for a family reunion, but he was not sure of the exact location. The driver also informed the officer that the vehicle belonged to appellant's girl friend. Deputy Burks advised the driver that he was going to give him a warning, and he was going to check his identification. Deputy Burks then approached appellant and immediately noticed the smell of alcohol. He asked appellant about the reason for their trip, but appellant provided different responses about how many days they had been in Texas. There was a discrepancy of three days between his and his brother's answers. Deputy Burks testified that appellant was more nervous than the driver. Deputy Burks then briefly questioned the driver before returning to the police vehicle to run the identification of both suspects. Approximately seven minutes into the traffic stop, while the officer was waiting for the results of the driver's licences, he again questioned appellant and asked him if it would be okay if he searched the vehicle. Appellant gave the officer consent to search and stepped outside of the vehicle while he searched. Just prior to the search, Officer Moseley, a K-9 officer with the Royse City Police Department, arrived on the scene as backup. Shortly after starting the search of the vehicle, Deputy Burks noticed the tire tool was lying in a pocket by the door instead of being stored in its usual position. This caused Deputy Burks to examine the spare tire. He immediately noticed grease between the wheel and the tire, that the spare tire was flat, and that the tire had no valve stem. Based upon his experience, Deputy Burks became suspicious that there might be drugs hidden in the tire. He removed the spare tire and could hear something fall inside the tire. Since the K-9 unit was present on the scene, Deputy Burks asked Officer Moseley to have the dog check for narcotics. The dog alerted for narcotics in the spare tire. Deputy Burks proceeded to cut open the tire, with the consent of his sergeant, and discovered the cocaine. Appellant immediately advised the officers that his brother, the driver, did not know anything about the drugs and that they belonged to him. The results of the license check were not returned until approximately thirty-one minutes after the vehicle was stopped. The brother was not charged with any offense and was released with the vehicle so he could return home. Appellant moved to suppress the evidence at the trial, following the testimony of Deputy Burks. The trial court overruled the motion after Deputy Burks testified and the jury was dismissed for the day. The State sought to enhance the offense charged and filed a Notice of Intent to Seek Higher Punishment Based on Prior Convictions on February 27, 2009 ("Notice"). The Notice referred to two prior convictions in Kentucky and provided the cause numbers, the offenses, and the dates of conviction. The trial court granted the State's motion to enhance. After the jury returned a verdict of guilty, the two prior convictions were read and appellant pleaded "true" to both. The court then found the allegations in the enhancement paragraphs true. The court assessed punishment at thirty-five years imprisonment. LEGALITY OF DETENTION
In his first issue, appellant contends that the trial court erred in denying his motion to suppress. He argues that the officer continued to detain him and his brother and asked questions unrelated to the original purpose of the stop. Appellant argues that none of the observations made by the officer provided reasonable suspicion of a crime and the search was unreasonable and violated his fourth amendment right against unreasonable searches and seizures. Standard of Review
We review a trial court's denial of a motion to suppress under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Appellate courts should afford almost total deference to a trial court's determination of the historical facts, where such facts involve credibility and demeanor of witnesses. Id. The appellate court should give the same deference to "mixed questions of law and fact" where the resolution of the issues involved depends on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Where, as here, the trial court did not make explicit findings of fact, we "view the evidence `in a light most favorable to the court's ruling' and `assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.'" Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). This same standard is applied to questions of whether voluntary consent to search was given by the suspect in suppression hearings. Id. This deferential standard of review also applies when a trial court's determination of historical fact is based upon a videotape recording admitted into evidence. Id. at 109. If, however, the resolution of questions of law and fact do not involve credibility and demeanor of witnesses, we conduct a de novo review. Guzman, 955 S.W.2d at 89. Because the trial court was required to rely on the officer's testimony and consider his credibility and demeanor, and review a videotape of the traffic stop, we will not conduct a de novo review and instead will give deference to the trial court's implicit findings that support its ruling. A traffic stop is a seizure under the Fourth Amendment and is subject to the Fourth Amendment's "reasonableness" requirement. Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984). During a traffic stop an officer may request identification, proof of insurance and car registration, check for outstanding warrants, and ask the driver where he is going and the purpose of the trip. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). Once the purpose of the detention is completed, the police may not " unnecessarily detain drivers solely in hopes of finding evidence of some other crime." Id. at 64 (emphasis in original). However, an officer may conduct consensual searches or questioning absent reasonable suspicion. Id. Appellant argues that the officer should have stopped questioning them after a citation was issued. Appellant contends that once the original purpose for the traffic stop ceased, the officer did not have reasonable suspicion to continue to detain them but was merely pursuing a "hunch." Appellant relies on the facts in St. George to support his argument that the search was not based upon reasonable suspicion and the detention should have stopped when the citation was written. St. George can be distinguished on two bases. First, in St. George a written citation was given, but in this case there is no clear evidence that a written citation was issued. Deputy Burks told the driver that he was going to give him a warning, but that he was going to check IDs. Approximately four minutes later, Deputy Burks provided the names and licenses to dispatch and was still waiting for the results when appellant consented to the search. The videotape does not show a written citation ever being handed to the driver and there is no testimony from anyone that a written citation was issued. Second, the search in St. George was not consensual. The officers had made it clear that the suspect could not leave until the issue of his correct identity was resolved. In this case, appellant consented to the search. Continued detention and search of a vehicle are not subject to the reasonable suspicion requirement where consent to search is given. Ohio v. Robinette, 519 U.S. 33, 39-40 (1996), discussed in James v. State, 102 S.W.3d 162 (Tex. App.-Fort Worth 2003, pet. ref'd). The State argued before the trial court that appellant gave his consent to search. The videotape clearly showed that Deputy Burks asked appellant if he could look in the vehicle and appellant responded that he could. Deputy Burks testified that he asked appellant if he could look in the vehicle for open containers, drugs, or weapons and appellant did not have a problem with his searching. Appellant clearly consented to the search and there is no argument or evidence that such consent was withdrawn at any time during the search of the vehicle. Appellant did not challenge the voluntariness of the consent in the trial court and his argument that the search was unreasonable does not address consensual searches. Therefore, we conclude that the trial court did not err in denying appellant's motion to suppress. Appellant's first issue is overruled. ENHANCEMENT OF PUNISHMENT
In his second issue, appellant contends the evidence is insufficient to support enhancement of the punishment, based upon the following arguments: (1) The State did not allege the necessary sequential facts; (2) both prior offenses involved multiple charges and the State did not prove the sequential facts because the State did not allege which of the offenses it intended to use for its sequential facts proof; (3) the State failed to prove one of the judgments was final; and (4) neither prior judgment constituted a valid judgment under Texas law. Finally, appellant argues that none of these issues are subject to a harm analysis. The first two arguments raised by appellant challenge the adequacy of the enhancement allegations. Appellant contends that the State did not adequately allege the necessary sequential facts and the State did not allege or prove which of the multiple offenses in the judgments it intended to rely upon. When a defendant fails to object to the adequacy of the enhancement allegations by pretrial objection, he has failed to preserve the issue and it is waived on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Ex parte Patterson, 969 S.W.2d 16, 19-20 (Tex. Crim. App. 1998) (defect in the substance of the charging instrument is not a fundamental defect and is waived by failure to object); Steadman v. State, 160 S.W.3d 582, 585 (Tex. App.-Waco 2005, pet. ref'd) (defect in enhancement allegations waived by failure to raise pretrial objection). In addition, appellant pleaded true to the enhancement allegations. A plea of true to enhancement paragraphs relieves the State of its burden of proving the prior convictions alleged for enhancement and waives a challenge to the sufficiency of the evidence on appeal. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Dinn v. State, 570 S.W.2d 910, 915-916 (Tex. Crim. App. 1978); Harrison v. State, 950 S.W.2d 419, 422 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). Therefore, we conclude that appellant's first two arguments relating to enhancement were waived by his failure to timely object and by his plea of true to the enhancement allegations. In his third argument, appellant contends that the State has not satisfied its burden of proving one of the convictions was final. However, a plea of true also relieves the State of its burden of proving a conviction is final for purposes of enhancement. Harvey, 611 S.W.2d at 111. Because appellant pleaded true to the enhancements, the State is not required to prove the convictions were final. The cases relied upon by appellant requiring the State to prove the convictions were final, did not involve a plea of true, and are therefore inapposite. Appellant's third argument is overruled. In his final argument, appellant contends that the Kentucky judgments would be invalid under Texas law because the sentences ran consecutively, not concurrently. He argues that this renders his current sentence void and that he may raise this issue on appeal, notwithstanding the fact that he pleaded "true" to the enhancement allegations. Ex Parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996); Levy v. State, 818 S.W.2d 801 (Tex. Crim. App. 1991); Mikel v. State, 167 S.W.3d 556 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Appellant is correct that an illegal sentence may be raised at any time. Beck, 922 S.W.2d at 182. However, he misapplies that rule to this case. In Beck, the defendant had been convicted of a state jail felony. The law in effect at that time provided that a state jail felony could not be enhanced, but appellant's sentence had been. Accordingly, the court concluded that the current sentence was void. In Mikel, the record established that the enhancement paragraphs were not "true" because the record clearly indicated that the offense in the second enhancement paragraph did not occur after the conviction of the first enhancement. Neither of those factual situations is present here. In this case, appellant has not argued that the convictions rendered by the Kentucky courts were void and not available for enhancement. His challenge is merely that the sentences imposed by the Kentucky judge would not be permissible under Texas law. This is nothing more than a collateral attack on the sentences imposed by the Kentucky courts and raises no allegations about the validity of the prior convictions. A collateral attack on a prior judgment is only permitted if the prior judgment is void. Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007). A judgment is void in only very limited circumstances, including "(1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charge, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel." Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). There is nothing in the record to show, and appellant has not alleged, that stacking of sentences was impermissible under Kentucky law and would render the judgments void. Instead, appellant's argument presents facts similar to those in Rhodes. In Rhodes the court noted that it had previously held that a cumulation order can be deleted without disturbing the balance of the judgment. Therefore, the court concluded that it could likewise impose a cumulation order. Under either circumstance the court determined that "the reformable nature of the defect means that it cannot render the prior judgment void." Id. at 889. Accordingly, if there had been an error in the sentencing under Kentucky law, appellant's only avenue was a direct appeal of those judgments. Like Rhodes, if the sentences had been impermissibly stacked, the defect could have been reformed and the judgment of conviction upheld. Appellant cannot now contend that the convictions are invalid because of improper sentencing. By challenging the sentences in this Court, appellant is mounting an impermissible collateral attack on the Kentucky judgments. In addition, appellant did not object to admission of the prior convictions at trial. Instead he pleaded true. Failure to object to the admission of prior convictions waives the right to collaterally attack the conviction on appeal. Hill v. State, 633 S.W.2d 520, 525 (Tex. Crim. App. 1982). We overrule appellant's fourth argument challenging the enhancement of his punishment. Based upon our resolution of issue two against appellant, challenging the enhancement of punishment, we need not conduct a harm analysis. We affirm the judgment of the trial court.