Howard, Kenneth Shane v. State

• Court: Court of Appeals of Texas
• Decided: March 10, 2005
• Docket: 14-04-00052-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 10, 2005

Affirmed and Memorandum Opinion filed March 10, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01052-CR

ROBERT WASHINGTON HAMILTON, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 01CR0373

M E M O R A N D U M   O P I N I O N

Appellant Robert Washington Hamilton was charged with felony driving while intoxicated.  Appellant contends that the trial court erred in denying his motions to suppress because the officer who arrested appellant allegedly (1) lacked reasonable suspicion to justify detaining appellant, and (2) violated sections 14.03(d) and (g) of the Texas Code of Criminal Procedure because he arrested appellant outside of his jurisdiction.  We affirm.

I.  Factual and Procedural History

Shortly after 8:00 p.m. on October 27, 2000, Officer Jeffrey Winstead of the La Marque Police Department saw appellant driving out of the parking lot of the Front Door Club in Texas City.  Officer Winstead saw appellant=s car hit another car as appellant=s car left the parking lot.  Appellant turned on to F.M. 1765, which is in the La Marque city limits. Appellant was driving thirty miles under the posted speed limit, and Officer Winstead activated his emergency lights to signal appellant to pull over for impeding traffic, for leaving the scene of an accident, and on suspicion of driving while intoxicated.  Appellant turned onto Washington Street, which is in the city limits of Texas City, and stopped.

Officer Winstead asked appellant why he failed to stop and give information after hitting the car in the parking lot.  Officer Winstead then smelled alcohol on appellant=s breath and saw that appellant=s eyes were bloodshot.  When appellant failed field sobriety tests, he was placed under arrest for driving while intoxicated.

Appellant filed two separate motions to suppress.  The first motion asserted that appellant was illegally stopped, detained, and arrested because Officer Winstead lacked reasonable suspicion of criminal conduct.  The second alleged that Officer Winstead, a La Marque police officer, lacked jurisdiction to arrest appellant in Texas City.  Approximately a year after the trial court held a hearing on the two motions, appellant entered a guilty plea pursuant to a plea agreement with the State.  The trial court found appellant guilty, assessed a $1,000 fine and punishment at seven years in prison, which was probated for seven years.  On appeal, appellant raises issues relating to his motions to suppress, which he claims the trial court implicitly overruled.

II.  Analysis

To preserve an alleged error for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the requested ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; (2) the trial court either ruled on the request, objection, or motion, expressly or implicitly, or refused to rule on the request, objection, or motion and the complaining party objected to the refusal.  Tex. R. App. P. 33.1(a).  The trial court held a single hearing on appellant=s two motions to suppress.  At the conclusion of the hearing, the trial judge said, AI will let you know.@  No oral or written rulings followed the hearing.  Our review of the record reveals that the trial court never ruled expressly on either of the two motions.  There is also no indication in the record that the trial court refused to rule on the motions or that appellant objected to any such refusal. 

In his appellate brief, appellant relies on the ATrial Court=s Certification of Defendant=s Right to Appeal@ and argues that by signing this instrument the trial court implicitly overruled appellant=s motions to suppress.  In the certification, the trial court certified that this case A[was] a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and Defendant has the right of appeal.@  See Tex. R. App. P. ' 25.2(d).  Arguably, the trial court would not have certified appellant=s right of appeal if it had granted appellant=s motions to suppress.  Likewise, appellant probably would not have pleaded guilty had the trial court ruled favorably on appellant=s motions.  It is just as likely, however, that the trial court never ruled on appellant=s motions. 

Approximately a year elapsed between the suppression hearing and appellant=s plea.  During this time, a new judge was assigned to preside over the case.  Because this was appellant=s third driving-while-intoxicated offense, the applicable punishment in this case was two to ten years in prison and a fine of up to $10,000.  See Tex. Pen. Code Ann. '' 49.04 & 49.09 (Vernon 2003).  The trial court, pursuant to the plea agreement, assessed punishment at only seven years in prison, probated for seven years, and a $1,000 fine.  The change in trial judges or the punishment offered by the State, or both, could have induced appellant to plead guilty even if there had not been any adverse rulings on his motions to suppress.  It is also conceivable that the first trial judge did not rule on appellant=s motions and that the subsequent trial judge, assuming that the first trial judge ruled on the motions, certified that appellant had the right of appeal.  Based on these facts, we find that the record does not support an implicit ruling on appellant=s motions to suppress.

Because the trial court did not rule expressly or implicitly on appellant=s motions to suppress, no error was preserved for appellate review.  Accordingly, we overrule appellant=s issue and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 10, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).