Andrew Shirley Jr. v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00119-CR __________________

ANDREW SHIRLEY JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 174th District Court Harris County, Texas Trial Cause No. 1599574 __________________________________________________________________

MEMORANDUM OPINION

In 2018, Appellant Andrew Shirley Jr. was indicted for possession of a

controlled substance, namely methamphetamine. 1 Shirley pleaded guilty pursuant to

a plea agreement, and the trial court deferred adjudication and placed Shirley on

community supervision for a period of three years. In July of 2020, the State filed a

motion to adjudicate Shirley’s guilt, alleging three violations of Shirley’s conditions

1 See Tex. Health & Safety Code Ann. § 481.115. 1 of community supervision. At the hearing on the motion to adjudicate, the State

announced it was abandoning two of the alleged violations 2 and only seeking

adjudication based on Shirley’s commission of the offense of evading arrest or

detention, and Shirley pleaded “not true.” After hearing evidence, the trial court

found that Shirley had violated the conditions of his community supervision as

alleged, adjudicated Shirley guilty, and sentenced him to imprisonment for nine

years. In one issue, Shirley challenges his adjudication of guilt and argues there was

no reasonable suspicion to support the traffic stop that precipitated his evasion of

arrest or detention. 3 We affirm.

Hearing on the Motion to Adjudicate

Testimony of Officer Christopher Pham

Officer Pham, with the Houston Police Department (HPD), testified that he

initiated a traffic stop on June 29, 2020, because the vehicle’s temporary plate “came

back expired[]” and the driver failed to use a turn signal. Pham agreed that another

officer, Officer Michael Falcone, had informed him the defendant had failed to make

a turn signal, and he relied on what Falcone had said, but he personally observed the

2 The alleged violations the State chose to abandon were possession of a controlled substance with intent to deliver and a positive drug test for multiple substances on two occasions. 3 Under an order issued by the Supreme Court of Texas, this case was transferred to our Court from the Fourteenth Court of Appeals in Houston, Texas. See Tex. Gov’t Code Ann. § 73.001. 2 expired license tag. Pham recalled that after he turned on his emergency lights, the

driver failed to stop for “about a quarter of a mile.” Pham testified that other marked

units were behind him in pursuit of Shirley. Pham testified as follows:

I initiated a traffic stop on a Buick. The Buick failed to stop for us with our emergency lights on, evading from us, and ended up wrecking his vehicle at a construction site. The driver got out of the vehicle after he wrecked the vehicle and immediately evaded from me on foot. ... After the vehicle crashed, I saw the driver jump out of the driver’s seat and immediately evade into an apartment complex. I pursued him on foot until he got to the far end of the complex where he tripped up trying to jump over a water puddle. And I told him, “Stop, let me see your hands.” He got on the ground and immediately gave up…. ... So[,] after he crashed the vehicle into a construction site, I saw the driver get out of the driver’s seat and…evade from me on foot into an apartment complex. I chased after him on foot for about 60 or 70 yards. He tried to jump over a water puddle and slipped, and he fell on the ground. I told him to stop, and I told him to show me his hands. That’s when he gave up. I detained him at that point and brought him back to the original scene.

According to Pham, Shirley then identified himself to Pham. Pham identified the

defendant as Shirley, the man he stopped that night.

On cross-examination, defense counsel questioned Pham about the lack of

probable cause for the stop in Pham’s offense report, and Pham replied that he

stopped Shirley because he failed to signal a lane change and because he had an

expired license tag. The temporary license tag had expired on May 27, 2020, and the

date of the offense was June 29, 2020. Defense counsel then asked whether the

Department of Public Safety had waived renewal of license tags because of the 3 coronavirus pandemic, and Pham replied, “I’m not sure, sir. I’m not sure of the

specifics.”

Testimony of Officer Michael Falcone and of Probation Officer Jesusa Goana

Officer Michael Falcone testified that he was a plainclothes undercover

officer assigned to the HPD Westside Division Tactical Unit. Falcone testified that

on June 29, 2020, he was conducting surveillance police work. The following

exchange occurred on examination by defense counsel:

[Defense counsel]: …Is your department stopping people for expired tags during the pandemic given that the DPS has restrictions because of COVID?

[Falcone]: Yes. We continued to stop people for expired registration.

[Defense counsel]: And is that something that you personally have done, is stop people for expired registration?

[Falcone]: I’m in a plainclothes capacity, but I do call out expired registration.

[Defense counsel]: Okay. And is your department issuing tickets for expired registrations?

[Falcone]: I do not write tickets, sir, so I don’t know that answer at this time.

[Defense counsel]: Okay. Do you know if your department was stopping people for expired registrations in June of 2020?

[Falcone]: Yes, sir. ... [Defense counsel]: Do you know if your department was issuing tickets for expired registration in June of 2020?

4 [Falcone]: I don’t know if they were issuing tickets, sir. I’m in a plainclothes capacity, so I do not do that.

Falcone notified the marked units of Shirley’s vehicle number and “paper tag[]” and

his failure to signal.

One of Shirley’s probation officers, Jesusa Goana, also testified that Shirley

was compliant with the terms of his community supervision “until he picked up the

law violation[,]” including possession with the intent to deliver and evading arrest

as well as two positive drug tests.

Closing Argument

After the close of evidence, the defense argued that there was no probable

cause for the traffic stop because, at the time of the alleged offense, DPS had

suspended enforcement against expired tags. In response, the State argued that

Officer Falcone had testified that HPD was still writing tickets for expired

registration. The trial court found that the State had met its burden of proof by a

preponderance of the evidence and further stated:

As it relates to the issue of whether this was a lawful detention or arrest, the Court believes that the -- Officer Pham had at the bare minimum a right to temporarily detain the defendant to investigate the issue as it relates to the violation -- what appeared to be a violation of the traffic laws as it relates to an expired registration. There was testimony from Officer Falcone that they were still giving -- HPD was still writing tickets for expired registration. So[,] at the very least, the officer had a right to investigate this alleged violation for a temporary detention, and so I believe that it was a lawful detention -- or attempt of a lawful detention. So[,] I do find the State’s met their burden of proof by a preponderance. 5 The trial court found that Shirley had violated the conditions of his community

supervision, adjudicated him guilty, and assessed punishment at nine years’

confinement.

Issue

The only issue Appellant raises on appeal is whether the record reflects that

the traffic stop was supported by reasonable suspicion. Appellant argues that the trial

court erred in adjudicating his guilt because the State failed to prove all the elements

of evading arrest or detention. He argues that the expired “tag did not supply

reasonable suspicion of criminal activity because there was no offense of driving

with an expired registration in June of 2020.” According to Appellant, the

registration laws were suspended by the governor in a press release on March 16,

2020. 4 Appellant argues that the Governor’s suspension of the registration laws had

the “force and effect” of law and therefore the State failed to prove that the attempted

detention was lawfully supported by reasonable suspicion.

According to the State, the Governor did not issue a “valid executive

proclamation, order, or regulation that is required to suspend a state statute.” The

State further contends that for a proclamation to be legally binding, it must be in

4 See Press Release, Greg Abbott, Office of the Texas Governor, Governor Abbott Waives Certain Vehicle Registration, Titling, and Parking Placard Regulations in Texas (March 16, 2020), https://gov.texas.gov/news/post/governor- abbott-waives-certain-vehicle-registration-titling-and-parking-placard-regulations- in-texas. 6 writing and filed with the Secretary of State. 5 Because the Governor’s press release

was not filed with the Secretary of State, the State argues it amounts to no more than

“a policy of prosecutorial discretion” and it did not suspend or change the law. 6

Standard of Review

We review a decision to adjudicate guilt in the same manner as we review a

decision to revoke community supervision—for abuse of discretion. 7 In a hearing to

revoke deferred adjudication, the State only needs to prove the violation of a

condition of probation by a preponderance of the evidence. 8 The evidence meets this

standard when the greater weight of the credible evidence creates a reasonable belief

5 Citing Williams v. State, 176 S.W.2d 177, 184 (Tex. Crim. App. 1943); In re Expunction, 497 S.W.3d 505, 509 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Manor Casino v. State,34 S.W. 769, 770 (Tex. App.—Austin 1896, no writ). 6 Here, the appellate record does not reflect that Shirley argued to the trial court that the Governor’s press release resulted in a suspension or change in the law. Rather, Shirley only argued to the trial court that DPS had suspended enforcement of expired tags. The trial court overruled that objection and found that the traffic stop was a lawful detention. An appellant’s argument to the trial court must comport with his argument on appeal. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). We restrict our analysis to whether the traffic stop was supported by reasonable suspicion. See id. 7 Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Tex. Code Crim. Proc. Ann. art. 42A.108(b). 8 Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013); Rickels, 202 S.W.3d at 763-64. 7 that the defendant has violated a condition of his community supervision. 9 We must

examine the evidence in the light most favorable to the trial court’s order. 10

In determining whether the allegations in the motion to adjudicate are true,

the trial court is the sole trier of facts, the judge of the credibility of the witnesses,

and the arbiter of the weight to be given to the testimony. 11 It is within the province

of the trial court, as factfinder, to reconcile conflicts or contradictions in the

evidence, and we do not reverse the trial court if the conviction finds support in the

evidence. 12 The State only needs to establish one sufficient ground for revocation by

a preponderance of the evidence. 13

Reasonable Suspicion for a Traffic Stop

A traffic stop constitutes a seizure under the Fourth Amendment and must be

supported by reasonable suspicion that an individual was committing or had

committed a traffic violation. 14 “Reasonable suspicion exists if the officer has

specific, articulable facts that, when combined with rational inferences from those

9 Rickels, 202 S.W.3d at 763-64 (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). 10 Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). 11 Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.). 12 See Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992); Shah v. State, 403 S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). 13 See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). 14 Davis v. State, 947 S.W.2d 240, 242-45 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). 8 facts, would lead him to reasonably conclude that a particular person actually is, has

been, or soon will be engaged in criminal activity.” 15 In determining whether a police

officer had reasonable suspicion to initiate a traffic stop, courts must consider the

totality of the circumstances and look solely to whether there was an objective basis

for the stop. 16

To support a reasonable suspicion, the articulable facts must show “‘that some

activity out of the ordinary has occurred, some suggestion to connect the detainee to

the unusual activity, and some indication that the unusual activity is related to

crime.’” 17 The applicable law does not require an actual violation but only that “the

officer reasonably believed a violation was in progress.”18 In determining whether

an officer’s suspicion was reasonable, we employ an objective standard: whether the

facts available to the officer at the moment of detention warrant a person of

reasonable caution to believe that the action taken was appropriate. 19 Driving with

expired registration violates multiple provisions of the transportation code. 20

15 Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). 16 Id. 17 Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (quoting Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)). 18 Green v. State, 93 S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref’d); see also Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). 19 See Terry, 392 U.S. at 21-22; Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d) (citing Davis, 947 S.W.2d at 243). 20 See, e.g., Tex. Transp. Code Ann. §§ 502.040(a) (Registration Required; General Rule), 502.407(a) (Operation of Vehicle with Expired License Plate), 9 Analysis

Shirley did not argue in the trial court that his vehicle registration was not

expired, nor does he make this argument on appeal. Shirley also did not argue in the

trial court that he did not evade arrest or detention, nor has he made this argument

on appeal.

Officer Pham testified that he made a traffic stop of Shirley in part for an

expired license tag. Pham also testified that the vehicle’s temporary license tag had

an expiration date of May 27, 2020, and he was not sure whether DPS had waived

renewal of license tags because of the pandemic. Officer Falcone testified that in

June 2020, HPD officers were still stopping people for expired registration, but

because he worked in a plainclothes assignment, he did not know whether HPD was

issuing tickets for an expired registration.

The testimony of Officers Pham and Falcone constitutes evidence “‘that some

activity out of the ordinary ha[d] occurred, some suggestion to connect the detainee

to the unusual activity, and some indication that the unusual activity [was] related to

[a] crime.’” 21 The officers’ testimony reflects that they “reasonably believed a

violation was in progress.”22 Viewing the evidence in the light most favorable to the

502.473(a) (Operation of Vehicle Without Registration Insignia), 504.943 (Operation of Vehicle Without License Plate). 21 See Derichsweiler, 348 S.W.3d at 916 (quoting Meeks, 653 S.W.2d at 12). 22 See Green, 93 S.W.3d at 545; Cook, 63 S.W.3d at 929. 10 trial court’s judgment, we conclude that the trial court did not abuse its discretion in

concluding that there was reasonable suspicion for the traffic stop. Additionally, the

defendant did not challenge at trial that he failed to stop and that he evaded arrest.

We conclude that the State proved by a preponderance of the evidence that Shirley

committed the offense of evading arrest or detention. 23 The trial court did not abuse

its discretion in adjudicating Shirley’s guilt.

We overrule Appellant’s issue, and we affirm the trial court’s judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on March 28, 2022 Opinion Delivered April 13, 2022 Do Not Publish

Before Kreger, Horton and Johnson, JJ.

23 See Hacker, 389 S.W.3d at 864-65; Garrett, 619 S.W.2d at 174. 11