Kenneth Huth v. State

NO. 07-07-0274-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 28, 2007 ______________________________ KENNETH HUTH, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT AT LAW NO. 7 OF BEXAR COUNTY; NO. 714535; HONORABLE BILL WHITE, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION In the absence of a signed final order disposing of appellant Kenneth Huth's petition for non-disclosure of criminal record brought under section 411.081 of the Texas Government Code, we dismiss his appeal for want of jurisdiction. Tex. Gov't Code Ann. § 411.081 (Vernon Supp. 2006). On May 15, 2007, the trial court conducted a hearing of appellant's petition for non-disclosure. After hearing appellant's grounds, the court announced its decision denying the petition. Appellant then verbally requested findings of fact and conclusions of law which the court dictated on the record before concluding the hearing. Appellant filed a notice of appeal on June 14, 2007. The clerk's record does not contain a signed order disposing of appellant's petition for non-disclosure. We notified the parties of this omission by letter dated July 30, 2007, and abated the case until August 20, 2007. On August 10, 2007, the reporter filed a reporter's record of the court's May 15, 2007, hearing. (1) However, the clerk has not certified and filed a supplemental clerk's record containing a signed order disposing of appellant's petition for non-disclosure. "The appellate timetable does not commence to run other than by a signed, written order, even when the signing of such an order is purely ministerial." Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (emphasis in original); see Tex. R. App. P. 26.1. Absent a signed order disposing of appellant's petition, the trial court retains jurisdiction, preventing attachment of this court's appellate jurisdiction. See Grant v. American Nat'l Ins. Co., 808 S.W.2d 181, 184 (Tex.App.-Houston [14th Dist.] 1991, no writ). We must therefore dismiss appellant's appeal. We dismiss the appeal only because of the absence of a signed order disposing of appellant's petition. We express no opinion whether an order denying a petition for non-disclosure is an appealable order. But see Rado v.State, No. 05-06-00200-CV, 2007 WL 1829648, 2007 Tex. App. Lexis 4984, (Tex.App.-Dallas June 27, 2007, n.p.h.) (court dismissed appeal finding no statutory or constitutional basis for exercising its jurisdiction over appeal from order denying petition for non-disclosure brought under Tex. Gov't Code Ann. § 411.081). This appeal is dismissed for want of jurisdiction. James T. Campbell Justice 1. According to the reporter's record the hearing of appellant's petition was June 15, 2007. This appears a typographical error since the docket sheet and notice of appeal designate May 15, 2007, the hearing date. icle that the controlled substance was discovered. Authority holds that as part of a traffic stop, an officer may 1) require the detainee to identify himself and produce a valid driver's license and proof of insurance and 2) detain the individual for a period of time reasonably sufficient to check for outstanding warrants. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004); Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.-Amarillo 2003, pet. ref'd). So too may he also ask the driver if he possesses illegal contraband and solicit voluntary consent to search the vehicle once the purpose of a traffic stop has been effectuated. Strauss v. State, 121 S.W.3d at 491; James v. State, 102 S.W.3d 162, 172-73 (Tex. App.-Fort Worth 2003, pet. ref'd). Requesting such consent is not an unlawful seizure, and neither probable cause nor reasonable suspicion is required for the officer to ask. James v. State, 102 S.W.3d at 173. Nor must the officer tell the individual that he is free to leave after the purpose of the stop is completed. Vargas v. State, 18 S.W.3d 247, 252 n.1 (Tex. App.-Waco 2000, pet. ref'd). As previously mentioned, once Trooper Rejino issued the warning and received the report from the dispatcher, he solicited the consent to search. By then the purpose of the stop had been effectuated; yet, only seconds had passed between the time consent was requested and the purpose effectuated. This is not a situation wherein appellant was detained for minutes or hours prior to broaching the matter of consent. In other words, the effectuation of the stop and the request for consent were rather contemporaneous here. Thus, we view the situation as falling within the scope of James and Strauss and, consequently, lawful. As to the contention that his consent was involuntary, we note that to be of such ilk, it must be the product of duress or coercion, express or implied. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). Moreover, the evidence of record here does not lend itself to such a claim. First, the initial detention was quite lawful; so, it cannot be said that appellant's acquiescence was part and parcel of illegal conduct on the part of the trooper. Second, no evidence was presented at the suppression hearing that illustrated the officer told appellant he had to consent or that if he did not consent he would be arrested or otherwise detained. Nor is there evidence that the trooper implicitly or explicitly threatened appellant verbally or through gesture. Indeed, but for conduct on the part of appellant indicative of nervousness, the interaction between the two appeared routine for a traffic stop. Finally, that the officer failed to inform appellant that he could exit the patrol car and leave is alone insufficient criteria to illustrate coercion; again, an officer does not have to tell the individual he may leave once the purpose of the stop is completed. Vargas v. State, 18 S.W.3d at 252 n.1. In sum, the trial court did not abuse its discretion in overruling the motion to suppress. Accordingly, we overrule each of appellant's issues and affirm the judgment of the trial court. Brian Quinn Chief Justice Publish. 1. Appellant does not separately brief his federal and state constitutional claims, and we will therefore not separately address them. 2. At another point, Rejino testified that he received the criminal history report prior to issuing the warning. It was up to the trial court to resolve this inconsistency.