Brandon Clark Davis v. State

• Court: Court of Appeals of Texas
• Decided: December 9, 2009
• Docket: 04-08-00689-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00689-CR

Brandon Clark DAVIS, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No.1, Bexar County, Texas Trial Court No. 223033 Honorable Al Alonso, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: December 9, 2009

AFFIRMED

Brandon Clark Davis appeals his conviction for driving while intoxicated (“DWI”). We

affirm the judgment of the trial court.

BACKGROUND

In the early morning hours of July 21, 2007, Bexar County Sheriff’s Deputy George Herrera

was patrolling Bitters Road located in San Antonio, Texas, when he noticed two vehicles that 04-08-00689-CR

appeared to be exceeding the posted speed limit of forty miles per hour. Herrera clocked a red

Chevrolet Aveo at fifty-six miles per hour and a black Jeep Wrangler at fifty-nine miles per hour.

Herrera noticed that the driver of the Jeep was a white male wearing a baseball cap. Herrera turned

on his lights, attempting to stop both vehicles, but only the Aveo came to a stop. Herrera discovered

that the driver, Donald Ackel II, was underage and had been drinking. Herrera cited him with

driving under the influence-minor, and had Ackel’s parents come pick him up. While waiting for

Ackel’s parents to arrive, Herrera noticed the Jeep return to the area and then speed off in the

direction the two vehicles had originally come from. Herrera again noted that the driver was a white

male wearing a baseball cap. Herrera believed that the driver of the Jeep was trying to see what had

happened to Ackel. Herrera learned from Ackel that the driver of the Jeep was Ackel’s friend

Brandon Clark Davis.

Herrera had noticed a Hill Country Village Police car at a gas station before he pursued the

speeding vehicles, and radioed the officer, Christopher Terranova, for his assistance in stopping the

Jeep. After receiving Herrera’s call, Officer Terranova pulled out onto West Bitters Road from the

parking lot of the gas station, and noticed a black Jeep traveling in his direction. Terranova did not

observe the Jeep speeding or committing any other traffic offenses, but he proceeded to stop the

vehicle per Herrera’s request. Terranova approached the driver of the Jeep to inform him that he had

been stopped at the request of a Bexar County Sheriff’s Deputy, and that they were going to wait for

the deputy to arrive. Herrera arrived approximately fourteen minutes later, at which point he

approached the Jeep to question Davis. Herrera noticed a “very strong odor of alcoholic beverages”

coming from Davis’s breath. Herrera then administered several field sobriety tests, and determined

Davis was intoxicated. Herrera arrested Davis and administered a breathalyzer test which showed

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his blood alcohol content to be .118. Davis was tried by a jury and convicted of DWI. On appeal,

Davis challenges his conviction in three issues, arguing the trial court erred in: (1) denying his

motion to suppress because Officer Terranova lacked authority to detain or arrest Davis while

outside his municipal jurisdiction; (2) denying his motion to suppress because Officer Terranova did

not personally observe Davis commit a traffic offense; and (3) submitting the jury charge because

a portion of the charge constituted an impermissible comment upon the weight of the evidence.

DISCUSSION

In Davis’s first and second issues, he contends the trial court erred in failing to suppress both

his arrest and any evidence gathered pursuant to it because Officer Terranova was outside his home

jurisdiction at the time he stopped and detained Davis, and because the officer did not observe Davis

commit an offense. A trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion. Bouyer v. State, 264 S.W.3d 265, 269 (Tex. App.—San Antonio 2008, no pet.) (citing

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). The record is reviewed in the light

most favorable to the trial court’s ruling, and the trial court’s judgment will only be reversed if the

ruling is outside the zone of reasonable disagreement. Id. Total deference is given to the trial court’s

determination of historical facts, “especially those based on an evaluation of the witnesses’

credibility and demeanor.” Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

However, a de novo standard of review is used in reviewing the trial court’s application of the law

to the facts. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). The trial court’s ruling will

be upheld if it “is reasonably supported by the record and is correct on any theory of law applicable

to the case.” Dixon, 206 S.W.3d at 590.

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Davis relies on State v. Kurtz for the proposition that a peace officer is not authorized to

arrest1 an individual for a traffic violation occurring outside that officer’s jurisdiction. State v. Kurtz,

152 S.W.3d 72, 79-80 (Tex. Crim. App. 2004) (affirming the exclusion of evidence where city police

officer was outside his jurisdiction when he detained defendant for traffic offense in violation of

article 14.03(g) of Code of Criminal Procedure). The State responds that article 14.03(g)(2), which

was amended in 2005, vests municipal police officers with the authority to make a warrantless arrest

for a traffic offense occurring anywhere in the county in which the officer’s municipality is located.

See TEX . CODE CRIM . PROC. ANN . art. 14.03(g)(2) (Vernon Supp. 2009).2 We agree. Under the

current version of article 14.03(g)(2), a peace officer listed in Subdivision (3) of article 2.12—which

includes “marshals or police officers of an incorporated city, town, or village”—is permitted to make

a warrantless arrest for a violation of the “Rules of the Road” (“a violation of Subtitle C, Title 7,

Transportation Code”)—which includes speeding—committed in the county in which the

municipality employing the peace officer is located. Id.; TEX . CODE CRIM . PROC. ANN . art 2.12(3)

(Vernon Supp. 2009); see State v. Purdy, 244 S.W.3d 591, 594 (Tex. App.—Dallas 2008, pet ref’d)

(recognizing the 2005 amendment to Article 14.03(g) eliminated the former restriction which

1 … Under article 14.03(g), an “arrest” is not limited to custodial arrests, but also includes investigative detentions. State v. Purdy, 244 S.W .3d 591, 594 (Tex. App.— Dallas 2008, pet. ref’d); see also Brother v. State, 166 S.W .3d 255, 260 (Tex. Crim. App. 2005) (providing that article 14.03(g) applies when a driver is temporarily detained based on reasonable suspicion). An officer may make an investigatory detention if he has reasonable suspicion, under the totality of the circumstances, to believe that the driver has recently, is, or will engage in criminal behavior; this is known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 21–22 (1968); Woods v. State, 956 S.W .2d 33, 38 (Tex. Crim. App. 1997).

2 … Article 14.03(g)(2) currently provides: “A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, except that an officer described in this subdivision who is outside of that officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.” T EX . C O D E C RIM . P RO C . A N N . art. 14.03(g)(2) (Vernon Supp. 2009).

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prevented all peace officers who were outside their jurisdiction from arresting individuals for a

traffic offense). Officer Terranova is a licensed peace officer employed by the Hill Country Village

Police Department. Additionally, Hill Country Village is a Type A Municipality. HILL COUNTRY

VILLAGE, CODE OF ORDINANCES, ch. 2., art I, § 2–1 (2007). “A police officer of a Type A

municipality has countywide jurisdiction, otherwise, an officer’s jurisdiction is confined to the city

limits.” Garcia v. State, No. 14-08-00815-CR, 2009 WL 2476537, at *1 n.2 (Tex. App.—Houston

[14th Dist.] Aug. 13, 2009, no pet.). Despite the fact that Terranova was outside the city limits of

Hill Country Village, he was still in Bexar County, the county in which Hill Country Village is

located, at the time he stopped Davis. Accordingly, pursuant to article 14.03(g)(2), Terranova was

authorized to stop Davis for a traffic offense committed in Bexar County; the question remains

whether Terranova was required to personally observe Davis commit the offense before he could

legally stop Davis.

The State contends that the requirement that the offense occur “within the officer’s presence

or view” extends to an officer who is told about the offense by another officer who actually

witnessed the offense. See TEX . CODE CRIM . PROC. ANN . art. 14.03(g)(2). The State relies on Astran

v. State, in which the court was asked to determine whether a motion to suppress should have been

granted where the appellant was arrested without a warrant by an officer who had not viewed the

commission of the offense. Astran v. State, 799 S.W.2d 761, 762 (Tex. Crim. App. 1990). Officer

Wilson, who actually viewed the offense, was undercover at the time, purchasing heroin from the

appellant. Id. After making his purchase, Wilson radioed the other officers “a detailed description

of appellant, which included appellant’s height, weight, and location[] . . . [and] that appellant was

wearing a tee-shirt which spelled the words ‘Jesus Christ.’” Id. The appellant was arrested, but

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Wilson did not actually conduct or witness the arrest. Id. Ultimately, the court held that “[a]s long

as the facts show that the viewing officer effectively participated in the arrest and was fully aware

of the circumstances of the arrest, then Art. 14.01 is satisfied.” Id. at 764 (holding that an officer

may act on information relayed by other officers to make a lawful warrantless arrest under article

14.01 of Code of Criminal Procedure, even though the officer by himself does not possess probable

cause).

Similarly, in Armendariz v. State, the Court of Criminal Appeals permitted an officer who

did not witness commission of the offense to assist the witnessing officer by making the arrest.

Armendariz v. State, 123 S.W.3d 401, 405 (Tex. Crim. App. 2003). In that case, Paquette, an Ector

County Deputy Sheriff was working undercover with the Odessa Police Department to investigate

a tip that the appellant was transporting cocaine. Id. at 403. Paquette followed the appellant in an

unmarked vehicle, and when he witnessed the appellant make a traffic violation—passing another

vehicle on the shoulder—he contacted the Odessa police officers and asked them to make the stop,

which occurred within Ector County but outside Odessa city limits. Id. The court held that, since

the officers were in radio contact and Paquette arrived on the scene within minutes of the stop,

Paquette essentially arrested the appellant. Id. at 405. The court relied heavily on its prior decision

in Astran to reach this conclusion. Id. at 404–05. Additionally, the court stated that “[i]n light of

such an Astran analysis, the geographic jurisdiction of the Odessa police officers was irrelevant.”

Id. at 405. Not only did the court permit a stop by officers outside of their jurisdiction, but also

permitted these officers to make the stop when they themselves had not witnessed the traffic offense.

Id.

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Davis maintains that although an officer may rely upon another officer’s assertions of

probable cause in making a warrantless arrest, that scenario applies only in situations involving

felonies and breaches of the peace. See TEX . CODE CRIM . PROC. art. 14.03(d) (Vernon Supp. 2009).

Because Herrera communicated to Terranova that Davis was speeding—an offense which is neither

a felony nor a breach of the peace—Davis contends that Terranova was unauthorized to stop and

detain him. Other than a citation to article 14.03(d), Davis provides no authority for this proposition,

which is contrary to the plain language of article 14.03(g)(2), permitting a peace officer to arrest for

a traffic violation. TEX . CODE CRIM . PROC. ANN . art. 14.03(g)(2). Thus, we agree that Officer

Terranova was authorized to stop and detain Davis based on the specific facts communicated by

Herrera to Terranova; we note that Herrera arrived shortly after the stop and took over the detention

and ultimately made the arrest. Under Astran and Armendariz, the assistance given to Herrera by

Terranova was permissible and the stop was legal. See Astran, 799 S.W.2d at 764; Armendariz, 123

S.W.3d at 405. Accordingly, the trial court did not err in denying the motion to suppress. Davis’s

first and second issues are overruled.

Additionally, Davis argues the trial court erred in submitting the jury charge because a

portion of the instruction constituted an erroneous statement of the law and an impermissible

comment upon the weight of the evidence. Davis specifically contends that the jury was

misinformed that so long as Davis was arrested for DWI, the arrest was legal. He further argues that

the charge incorrectly asked the jury to evaluate whether Deputy Herrera had the authority to arrest

him for driving while intoxicated, but instead should have instructed the jury to consider whether

Officer Terranova had the authority to detain him. Here, however, Davis requested the jury charge

that was submitted; the record shows the court adopted the proposed jury charge submitted by

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defense counsel over the State’s objection. “It is well established that when a defendant requests a

charge, and the court submits it, he can not complain of that charge on appeal.” Tucker v. State, 771

S.W.2d 523, 534 (Tex. Crim. App. 1988); see Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App.

2009) (stating that a defendant may not complain of a charge that he requested). Even if the charge

contains error, the defendant cannot challenge it on appeal because any error has been invited.

Tucker, 771 S.W.2d at 534. Thus, even if the charge was erroneous, Davis invited the error and

cannot complain of it on appeal. Id. Accordingly, we overrule Davis’s third issue.

CONCLUSION

Based on the foregoing analysis, the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

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