Gentry Seymon Johnson v. State

NO. 07-07-0255-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 28, 2008 ______________________________ GENTRY SEYMON JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY; NO. 10,852; HON. DAN MIKE BIRD, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Gentry Seymon Johnson was convicted of robbery and placed on community supervision for ten years. The State then sought to revoke his probation and, after a hearing, the trial court did so. Appellant appeals that revocation by contending the trial court abused its discretion in finding he had violated two terms of his probation and by denying his request for a directed verdict because there was no evidence of the order imposing conditions of probation on him. We affirm the trial court’s judgment. Law and Its Application The State bears the burden of proving by a preponderance of the evidence that appellant violated a condition of his probation. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Herald v. State, 67 S.W.3d 292, 293 (Tex. App.–Amarillo 2001, no pet.). Furthermore, we review the trial court’s decision to revoke probation for abuse of discretion; under that standard there need be some evidence of record to support the decision. Herald v. State, 67 S.W.3d at 293. And, in determining whether such evidence exists, the record is viewed in the light most favorable to the ruling. Id. Moreover, when the trial court founds its decision to revoke on several grounds, the appellant must illustrate why none are legitimate. This is so because any one ground may support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). As previously mentioned, appellant violated several conditions of his probation. One involved his avoidance of people or places of a harmful or disreputable character, as testified to by his probation officer. That very same officer testified to appellant smelling of marijuana on his person after leaving a residence and appellant admitting that others present in the house were smoking that particular contraband in that house. Given this evidence, we conclude that there was some evidence of record supporting the conclusion that appellant violated the aforementioned condition and that the trial court did not abuse its discretion in revoking probation See Kelly v. State, 483 S.W.2d 467, 470 (Tex. Crim. App. 1972) (concluding that a locale whereat marijuana is smoked is a “harmful place” for purposes of determining whether that condition of probation was violated). Finally, appellant complains that there was no evidence admitted at the hearing as to the terms or conditions of his probation. Yet, his probation officer testified to the condition being in place, and appellant did not assert that it was not the best evidence of the matter. And, as long as the judgment and order of probation appear in the record on appeal, as they do here, the State is not required to introduce them into evidence. Cobb v. State, 851 S.W.2d at 874. Accordingly, we overrule all issues and affirm the judgment. Brian Quinn Chief Justice Do not publish. ssing a traffic violation may stop the vehicle and detain its occupants for no longer than necessary to effectuate the purpose of the initial stop. Strauss v. State, 121 S.W.3d 486, 490 (Tex. App.–Amarillo 2003, pet. ref’d). Yet, as part of that detention, he may require the detainee to identify himself, produce a driver’s license, and provide proof of insurance. Id. at 491. So too may he ask the driver and his passenger about their destination and the purpose of their trip. Id. The officer may also check to see if there exist any outstanding warrants for the detainee and, once the purpose of the stop has been effectuated, ask if the driver possesses illegal contraband and request consent to search the vehicle. Id. Because merely requesting such consent does not amount to further detention, Vargas v. State, 18 S.W.3d 247, 252-53 (Tex. App.– Waco 2000, pet. ref’d), neither probable cause nor reasonable suspicion is required as a prerequisite to soliciting it. James v. State, 102 S.W.3d 162, 173 (Tex. App.–Fort Worth 2003, pet. ref’d); Leach v. State, 35 S.W.3d 232, 235 (Tex. App.–Austin 2000, no pet.). With this said, we turn to the facts before us. Appellant does not deny that the original stop was legitimate. Again, the license plate on his car was obscured by a tinted cover, in violation of state traffic laws. Nor does he cite us to authority suggesting that the 12-minute delay between the initial stop and the point he received the written warning was in and of itself unreasonably excessive. Instead, he posits that once the troopers “verif[ied] the vehicle’s registration” and “check[ed] for warrants,” they “were obligated to issue the citation and send [him] on his way.” That argument does not allow for their authority to briefly question detainees about the purpose of their trip and their destination. Nor does it take into consideration the effect of the inconsistent answers uttered by appellant and his passenger and the troopers’ ability to address those inconsistencies. Simply put, the troopers were not required to ignore them. Instead, they could have opted to ask those questions reasonably needed to resolve the inconsistencies (assuming, of course, further questioning would have resolved the inconsistencies and not merely produced circumstances warranting additional investigation). Or, we see no reason why the troopers could not merely opt to cut-to-the-chase, that is, issue a traffic citation and immediately request authorization to search the vehicle. And, that the request at bar may have come as or immediately after a trooper handed the citation to appellant hardly illustrates further delay. We also note that appellant cites us to no cases suggesting that an officer’s taking 12 minutes to stop a traffic violator, ask for his identification and insurance, pose questions addressing the driver’s purpose and destination, call dispatch to verify appellant’s identity and determine whether he is subject to outstanding warrants, and then issue a citation is inherently excessive or unreasonable. Nor does he so contend. And, while all that occurred, appellant was allowed to return to the vehicle to secure the vehicle’s registration from the glove compartment, open his trunk, secure a tool, and use the tool to remove the cover obstructing his license plate without a trooper standing near him. As appellant did these things, the troopers could be heard talking among themselves about the inconsistencies in the stories posed by appellant and his passenger. That appellant was free to move as he did also tends to discredit his contention that he and his passenger (who sat inside the car until the search was authorized) were victims of “persistent, invasive, and accusatory questioning.” In sum, the troopers asked questions and pursued a course of conduct previously found acceptable. And, about ten seconds elapsed between the time the traffic warning had been issued and the trooper requested consent to search. Moreover, the officer was not required to inform appellant that he was free to leave. Vargas v. State, 18 S.W.3d at 252 n.1. Under these circumstances, we cannot say that the trial court erred in denying appellant’s motion to suppress. Issue 2 - Voluntariness of Consent Next, appellant contends the State failed to prove, by clear and convincing evidence, that his consent to search was voluntary. This allegedly is so because two troopers were present, each was armed, he was asked a series of questions, he was directed where to stand, and the troopers failed to inform him that he was free to leave or that he could deny consent to search before consent was sought. We overrule the issue. If the voluntariness of consent is challenged, the State has the burden to prove voluntariness by clear and convincing evidence. Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006). Additionally, whether consent was voluntary is a question of fact determined by the totality of the circumstances. Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). Those circumstances can include the age of the accused, his education and intelligence, the length of the detention, the repetitiveness of questioning, and the use of physical punishment. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). So too is the failure to inform the accused that he can refuse consent an indicia worthy of consideration, though such a failure does not automatically render consent involuntary. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002). In applying the foregoing authority to the record before us, we note that appellant was a 27-year-old adult who spoke Spanish. However, the trooper spoke to him in Spanish, and nothing on the video indicates that appellant was unable to understand what he was being told. The video also depicted appellant casually walking (without police accompaniment) to and from his car as he retrieved the vehicle’s registration. Also worthy of comment is that neither officer stood near him as he opened the vehicle’s trunk to retrieve a tool. Most anything could have been present in the trunk, including a weapon or firearm; yet, the troopers stood so far from him that their visage was not captured by the camera in their squad car. These indicia hardly depict coercion or undue sequestration of appellant by the law enforcement officers. Nor do they depict tension or apprehension on the part of appellant or his passenger. Indeed, appellant was allowed to walk around, stand with his hands in his pockets, fix his car, and even shake hands with a trooper. In turn, his passenger was allowed to remain in the car until the search was authorized. Admittedly, the troopers were in uniform and had weapons. Yet, there was no testimony or other evidence illustrating that they took an intimidating stance, drew their weapons, questioned appellant at the same time, or suggested that a warrant would be obtained if consent to search was refused. See Vargas v. State, 18 S.W.3d at 252 (noting the lack of those factors in finding no coercion involved). And although their request to search and appellant’s response occurred off-camera, appellant’s conduct indicated that he said yes by walking up to his car (again without any trooper following him), informing his passenger that the officers were going to search, requesting her to exit the vehicle, and permitting the search. See Caraway v. State, 255 S.W.3d 302, 310 (Tex. App.–Eastland 2008, no pet.) (noting that although the video did not show an affirmative response to the request to search, the accused’s conduct showed he voluntarily consented by accompanying the officer to the vehicle and guiding the initial search). In short, the record contains evidence which the trial court could have reasonably construed as clearly and convincingly illustrating that appellant’s consent to the search was voluntary. This is so, given the totality of the circumstances, even though the troopers did not tell him he could leave or deny consent. Issue 3 - Scope of Search Appellant next challenges the scope of the search. This issue is also overruled because we do not find in the record where appellant raised it below. It was not mentioned in his motion to suppress or at the hearing held on his motion. Having failed to propose it to the trial court, the issue was waived. See Strauss v. State, 121 S.W.3d at 490. Issue 4 - Denial of Due Process Through appellant’s final issue, he questions the trial court’s failure to grant him a new trial. He believed himself entitled to it since he discovered after judgment was pronounced that the trial judge was under criminal investigation and later indicted. This circumstance purportedly denied him due process. His motion for new trial, however, was filed more than 30 days after his sentence was pronounced in open court. See Tex. R. App. P. 21.4(a) (requiring that a motion for new trial be filed no later than 30 days after sentence was imposed or pronounced in open court). Furthermore, the record does not illustrate that he secured an extension of the 30-day deadline. So, because the motion was untimely, we overrule the issue. Accordingly, the judgment of the trial court is affirmed. Brian Quinn Chief Justice Do not publish.