Moore Jr., Floyd v. State

Affirmed; Opinion of March 6, 2003 Withdrawn; Corrected Memorandum Opinion filed March 13, 2003 Affirmed; Opinion of March 6, 2003 Withdrawn; Corrected Memorandum Opinion filed March 13, 2003. In The Fourteenth Court of Appeals ____________ NO.  14-02-00388-CR ____________ FLOYD MOORE, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 00CR1022 C O R R E C T E D   M E M O R A N D U M   O P I N I O N Appellant Floyd Moore, Jr. appeals from his conviction for possession of cocaine in the amount of less than one gram. We affirm. Factual Background During the afternoon of June 10, 2000, Officers Williams and Golden of the Galveston County Sheriff’s Department saw appellant’s car pull into a store parking lot located in an area known for a high level of narcotics activity. The vehicle was moving at class=Section2> a high rate of speed and stopped at the establishment’s front doors. According to Officer Golden, bystanders in the parking lot quickly moved up to the sidewalks when the fast-moving vehicle approached. As soon as the vehicle stopped, several individuals walked up to appellant and began talking and pointing towards the officers’ patrol cars parked across the street. Appellant immediately left. The tires of his car squealed as he pulled out of the parking lot. Officer Williams testified the people in the parking lot easily could have been run over. Both officers, intending to make a traffic stop for reckless driving, immediately pursued appellant’s car. Eventually, appellant brought his car to a stop. A struggle ensued and the officers found appellant in possession of crack cocaine. Following a hearing, the trial court denied appellant’s motion to suppress the evidence based on lack of probable cause for the traffic stop. The jury found him guilty of possession of cocaine in an amount less than one gram, and assessed punishment at twenty-four months’ confinement. Appellant presents three issues on appeal, alleging error in the denial of his suppression motion and in the jury charge. Motion to Suppress In his first point of error, appellant argues the trial court erred in denying his motion to suppress as there was no probable cause for the officers to stop and arrest him. Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In reviewing the trial court’s ruling on a motion to suppress, we afford deference to the trial court’s determination of the historical facts and rulings on mixed questions of law and fact, especially if those questions ultimately turn on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche, 10 S.W.3d at 327. Appellant argues that the trial court improperly applied the law to the facts, in that his actions did not constitute reckless driving when he drove away from the store parking lot. Appellant also argues that the officers’ testimony was too conflicting and inconsistent to support the court’s ruling. We find no merit to either argument. A police officer may stop and detain a motorist for investigation if the officer has a reasonable suspicion that a traffic violation was committed, or if the offense is committed in the officer’s presence. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). Reckless driving is a traffic violation defined as “driv[ing] a vehicle in willful or wanton disregard for the safety of persons or property.” Tex. Transp. Code. § 545.401. Officer Golden testified to observing appellant’s car enter the parking lot at a high rate of speed, causing bystanders to step up onto the sidewalk. He also testified to observing appellant’s car quickly leave the parking lot, squealing its tires. Officer Williams testified that appellant’s tires squealed either when appellant’s vehicle stopped or when it quickly took off again, and that it was difficult to tell because appellant’s arrival and departure happened so quickly. Officer Williams further testified that there were people in the parking lot at the time. Although appellant’s witness, the owner of the car involved in the incident, testified that the vehicle had loose motor mounts and that she had been unable to “burn rubber” when she later attempted to do so, the trial court is the sole trier of fact and judge of the credibility of witnesses at a suppression hearing. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We view the evidence and all reasonable inferences in the light most favorable to the trial court’s ruling, and reverse only if there has been a clear abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). After reviewing the evidence presented at the suppression hearing, we find no abuse of discretion by the trial court in denying appellant’s motion to suppress. Appellant’s first point of error is overruled. Jury Charge By his second and third points of error, appellant argues the trial court erred in submitting the following instruction in the jury charge: It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecutor’s proof exclude all “reasonable doubt” concerning the Defendant’s guilt. In Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals held that a jury instruction on reasonable doubt is no longer necessary, and that the better practice is to not use such an instruction. The Paulson court further stated that if both the State and the defense agree to the instruction, it is not reversible error for the trial court to include the instruction. Paulson, however, fell short of holding that such an instruction, absent agreement of both sides, would constitute reversible error. Since Paulson, courts of appeals have been divided as to whether inclusion of a reasonable doubt jury instruction in the absence of agreement constitutes error, and, if so, whether such error is harmless. See, e.g., Carriere v. State, 84 S.W.3d 753, 759 (Tex. App.—Houston [1st Dist.] 2002, pet. filed) (finding no error); Phillips v. State, 72 S.W.3d 719, 721 (Tex. App.—Waco 2002, no pet.) (finding harmless error); Colbert v. State, 56 S.W.3d 857, 860 (Tex. App.—Corpus Christi 2001, pet. granted) (finding reversible error). We need not reach that determination in this case. Because appellant failed to object to this jury charge, he must establish egregious harm. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious harm exists when the error was so harmful as to deny a defendant a fair and impartial trial. Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). Any harm suffered must be actual and not merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Appellant argues the instruction played a crucial role in his conviction because of its allegedly misleading and confusing nature, and that it was a comment on the weight of the evidence. We find no support for these arguments in the record before us. Assuming, without deciding, it was error for the trial court to submit the jury instruction, appellant has not established that he suffered egregious harm by inclusion of the instruction. Accordingly, we overrule appellant’s second and third points of error. The judgment of the trial court is affirmed. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed March 13, 2003. Panel consists of Justices Fowler, Edelman, and Frost. Do Not Publish — Tex. R. App. P. 47.2(b).