Danny Joubert v. State

• Court: Court of Appeals of Texas
• Decided: January 21, 2004
• Docket: 10-01-00237-CR
• Status: Published

Opinion

Danny Joubert v. State

IN THE

TENTH COURT OF APPEALS

No. 10-01-237-CR

     DANNY JOUBERT,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 27,743

CONCURRING OPINION

      The record does not demonstrate that Officer Ritter had a reasonable belief that Joubert had committed a traffic violation. However, because he consented to the search, I join in affirming the judgment.

      I would find the stop to be illegal. The question then becomes whether Joubert’s consent purged the contamination from the illegal stop, i.e., whether the taint from the stop was attenuated by the consent. Herrera v. State, 80 S.W.3d 283, 289 (Tex. App.—Texarkana 2002, pet. ref’d); see also Sims v. State, 84 S.W.3d 805, 810 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (attenuation doctrine applies to art. 38.23). The Court of Criminal Appeals has devised the following set of factors to be used in the attenuation analysis in a consent-to-search case:

      1.   The proximity of the consent to the illegal police conduct and what occurred in that time period.

      2.   Whether the illegal conduct brought about police observation of the particular object which they sought consent to search.

      3.   Whether the illegal conduct was “flagrant police misconduct.”

      4.   Whether the consent was volunteered rather than requested by the detaining officers.

      5.   Whether the arrestee was made fully aware of the fact that he could decline to consent and thus prevent an immediate search.

      6.   Whether the police purpose underlying the illegal conduct was to obtain the consent.

See Boyle v. State, 820 S.W.2d 122, 131-32 (Tex. Crim. App. 1989); Herrera, 80 S.W.3d at 289 (citing Boyle). Applying the factors to this case:

      1.   Consent was given very soon after the illegal stop, and there were no intervening events to purge the taint. This factor weighs in Joubert’s favor.

      2.   Although the stop brought about Ritter’s observation of the inside of the vehicle, the contraband was found in a partially open bag in plain view. We cannot say this factor weighs in either side’s favor.

      3.   The stop, while misguided, was not flagrant police misconduct. This factor weighs in the State’s favor.

      4.   Consent was not volunteered but rather came at Ritter’s request. This factor weighs in Joubert’s favor.

      5.   Joubert was not given his Miranda rights or otherwise informed of his right to deny consent. This factor weighs in Joubert’s favor.

      6.   The record does not show that the stop had the underlying purpose of searching the vehicle. This factor weighs in the State’s favor.      

      Joubert was illegally stopped late at night, not informed of his Miranda rights, asked to consent to a search, and afforded little time to reflect. However, he freely gave consent (a) under circumstances not tainted by flagrant police misconduct or coercion and (b) to a simple request for a search after the officer learned he had stopped a driver with no license and a criminal history. While some Boyle factors favor each side, after weighing the factors under these circumstances, I conclude that the taint was attenuated by the consent.

      Because the taint from an illegal stop was attenuated by Joubert’s consent, I join in affirming the judgment. 

                                                                   BILL VANCE

                                                                   Justice

Concurring opinion delivered and filed January 21, 2004

Publish

'CG Times', serif">      Dodson raises two additional arguments. Dodson first argues that Osteen abused the non-suit process by taking the non-suit to avoid the effect of the deemed admissions. However, "we are unwilling to hold a plaintiff is in bad faith for taking a non-suit when the case has become difficult." See Orion Inv. v. Dunaway and Associates, 760 S.W.2d 371, 374 (Tex. App.—Fort Worth 1988, writ denied). Osteen was entitled to take a non-suit in the face of deemed admissions.

       Dodson also argues that the deemed admissions are a discovery sanction under Rule 215 that survives the taking of a non-suit. However, unlike Rule 169, Rule 215 does not operate automatically. If admissions may be deemed under Rule 215(4)(a) for failure to comply with Rule 169, they may only be deemed upon a motion by the requesting party. See Tex. R. Civ. P. 215(4)(b). There is nothing in the record to indicate that Dodson or Ferris filed a motion requesting sanctions under Rule 215 in the first suit. Thus, the issue of whether deemed admissions survive a non-suit as a discovery sanction is not before us.

FERRIS' PLEA IN BAR

      Ferris raised the plea in bar in its original answer. The court set the plea for a hearing. The docket sheet reflects that the hearing was held on May 13, 1993. The docket entry for that day states: "P app pro se; D's app for Mon - Suits Ds Motions Granted - (P wanted 30 more days)." The final judgment recited that three exhibits were admitted during this hearing and that the court considered these exhibits in rendering the judgment in favor of the defendants.

      The court's action in granting the plea in bar and rendering a take-nothing judgment was improper. "[D]efenses ‛in bar’ are not the proper subject matter of disposition on mere preliminary hearing before the court like pleas in abatement, although a speedy and final judgment may be obtained on the basis of matters in bar and without the formality of a trial on the merits, if the parties so agree or if recourse is had to the process of summary judgment where contested fact issues are not present." Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214 (1958). The docket entry clearly reflects that Osteen did not agree to the pretrial hearing on Ferris' plea in bar. Thus, Ferris was required to proceed with its claim as a motion for a summary judgment, although the judgment may be upheld if the proceedings can be fairly characterized as one on a summary judgment. See Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi 1991, no writ).

      Ferris did not file a motion for a summary judgment. The hearing cannot be characterized as a summary judgment proceeding. See Tex. R. Civ. P. 166a. Ferris concedes that the court conducted an evidentiary hearing on the plea, a procedure that is not allowed in the summary judgment context. See State v. Easley, 404 S.W.2d 296, 297 (Tex. 1966). Thus, the court erred when it granted Ferris a take-nothing judgment on a pretrial plea in bar. Point two is sustained.

      The take-nothing judgments are reversed and this cause is remanded for a trial on the merits.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed February 16, 1994

(WITHDRAWN 4-13-94)