In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00213-CR No. 07-22-00214-CR
JUSTIN DUNWAY FRIAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 452nd District Court McCulloch County, Texas Trial Court No. 6707 and 6708 Honorable Robert R. Hofmann, Presiding
June 6, 2024 MEMORANDUM OPINION1 Before QUINN, C.J., and PARKER and DOSS, JJ.
As a preliminary note, we observe that these causes (Trial Court Cause Nos. 6707
and 6708) were consolidated for trial with another (Trial Court Cause No. 6709). Each
involved separate indictments resulting in distinct convictions and judgments. Justin
Dunway Friar appealed each conviction. Yet, one attorney represents him in the appeals
from the judgments in 6707 and 6708, while another does so in the 6709 appeal.
1 These appeals were transferred to this Court from the Third Court of Appeals. We apply the latter’s precedent where it conflicts with ours. TEX. R. APP. P. 41.3. Furthermore, each attorney raised separate issues in their respective briefs. Thus, we
consolidate the appeals in 6707 and 6708 (our appeal numbers 07-22-00213-CR and 07-
22-00214-CR) for disposition through this opinion and concomitant judgment. The appeal
from cause number 6709 will be addressed via a separate opinion of this Court.
Judgments entered in cause numbers 6707 and 6708 manifest appellant’s
convictions for aggravated assault against a public servant and evading arrest or
detention with a motor vehicle. Appellant attacks each via four issues. We address each
in turn.
Issues One and Two—Discovery and Continuance
Through issues one and two, appellant complains about the trial court’s failure to
act upon discovery requests and grant his motion to continue trial, respectively. The
discovery requests and motion to continue were filed in trial court cause numbers 6620
and 6621. The State initiated those prosecutions via indictments filed on May 18, 2021.
Yet, the trial court dismissed each of those causes on December 16, 2021, pursuant to
the State’s motion.
Dismissing a criminal cause terminates that particular prosecution or action. See
State v. Eaves, 800 S.W.2d 220, 224 (Tex. Crim. App. 1990) (stating that when a trial
court sets aside the charging instrument, the accused is discharged from the accusation,
no case pends against him regarding that accusation, and “as surely as if the information
had been ‘dismissed,’ the prosecution, the criminal action, terminate[s]”); Garcia v. Dial,
596 S.W.2d 524, 528 (Tex. Crim. App. 1980) (stating that dismissing a prosecution
discharges the accused and no case pends against him involving those particular
charges). The trial court also loses jurisdiction to act further in the dismissed cause.
Garcia, 596 S.W.2d at 528; State v. Thaxton, No. 07-04-00032-CR, 2004 Tex. App. 2 LEXIS 8601, at *6–7 (Tex. App.—Amarillo Sept. 24, 2004, no pet.) (mem. op., not
designated for publication). So, in the trial court dismissing cause numbers 6620 and
6621, the prosecutions ended without a substantive adjudication. Therefore, matters
pending in each (like discovery requests, motions to continue and rulings thereon)
became moot.2 See BLACK’S LAW DICTIONARY (11th ed. 2019) (defining moot as “having
no practical significance; hypothetical or academic”).
Moreover, the records before us fail to reveal that appellant filed written discovery
requests in cause numbers 6707 and 6708 akin to those earlier filed in the dismissed
prosecutions. However, we find, in 6707 and 6708, documents entitled “Discovery
Compliance Form Under Article 39.14, Code of Criminal Procedure” signed by counsel
for both the State and appellant; they acknowledge appellant’s receipt of discovery from
the State. So, it appears discovery was provided in each cause. And, most importantly,
appellant fails to specify what, if anything, was denied him that he formally requested in
cause numbers 6707 and 6708.
We overrule issues one and two.
Issue Three—Reindictment
Through issue three, appellant complains of a purported due process violation. It
pertains to the absence of opportunity to contest his reindictments in cause numbers 6707
and 6708. Allegedly, he was entitled to notice and hearing before that could be done.
Yet, the State argues that the complaint was never broached to the trial court. Our own
perusal of the record failed to uncover a motion or request seeking such opportunity. Nor
2 Incidentally, appellant sought to continue the December 2021 trial date. The trial court convened trial in June of 2022. Thus, he, in effect, obtained the earlier requested delay.
3 does appellant provide us with record cites illustrating that he broached his “due process”
complaint with the trial court. This is problematic since allegations of denied due process
are generally waived unless preserved. Jones v. State, No. 07-23-00359-CR, 2024 Tex.
App. LEXIS 1967, at *3 (Tex. App.—Austin Mar. 24, 2020, no pet.) (mem. op., not
designated for publication); see also Crim v. State, No. 03-19-00445-CR, 2020 Tex. App.
LEXIS 9729, at *8–9 (Tex. App.—Austin Dec. 11, 2020, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant waived his due process complaint by
neglecting to urge it before the trial court). Because we cannot find where appellant
preserved the substance of his third issue, his complaint was waived.
Issue three is overruled.
Issue Four—Suppression
Through his fourth and final issue, appellant complains about the denial of his
motion to suppress. It involved a traffic stop for which there allegedly was “no articulated
reasonable suspicion of criminal activity for the stop.” Yet, the testimony of the trooper
who detained him and a video of what transpired immediately before the stop belied this.
In the video, one sees appellant in a white SUV approach the trooper. The latter
had pulled to the right just feet before entering a residential intersection. The white SUV
then proceeds straight through the intersection despite having his left turn blinker
engaged. Five to six seconds lapse before the trooper performs a U-turn, apparently to
follow appellant.3 By then, though, appellant had completed a left at the ensuing
intersection and proceeded down the block. As the officer also turned left at the same
3 The trooper recognized appellant as someone he stopped several months earlier. That detention led to the trooper’s discovery that appellant lacked a valid driver’s license.
4 intersection, appellant’s vehicle could be seen. By then, he had come to the next
residential intersection and again turned left. Furthermore, his vehicle had already
proceeded several car lengths down the road. The distance travelled compared to the
short amount of time that lapsed tends to confirm the trooper’s accompanying testimony
about seeing appellant increase the speed of his vehicle. Also captured by the video is
a stop sign at the intersection through which appellant had just passed. The length of the
block preceding the intersection and stop sign, the nominal time that transpired between
appellant’s first and second left turns, and his distance from the intersection when his
movement was again caught on video permits a fact finder to reasonably infer that
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00213-CR No. 07-22-00214-CR
JUSTIN DUNWAY FRIAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 452nd District Court McCulloch County, Texas Trial Court No. 6707 and 6708 Honorable Robert R. Hofmann, Presiding
June 6, 2024 MEMORANDUM OPINION1 Before QUINN, C.J., and PARKER and DOSS, JJ.
As a preliminary note, we observe that these causes (Trial Court Cause Nos. 6707
and 6708) were consolidated for trial with another (Trial Court Cause No. 6709). Each
involved separate indictments resulting in distinct convictions and judgments. Justin
Dunway Friar appealed each conviction. Yet, one attorney represents him in the appeals
from the judgments in 6707 and 6708, while another does so in the 6709 appeal.
1 These appeals were transferred to this Court from the Third Court of Appeals. We apply the latter’s precedent where it conflicts with ours. TEX. R. APP. P. 41.3. Furthermore, each attorney raised separate issues in their respective briefs. Thus, we
consolidate the appeals in 6707 and 6708 (our appeal numbers 07-22-00213-CR and 07-
22-00214-CR) for disposition through this opinion and concomitant judgment. The appeal
from cause number 6709 will be addressed via a separate opinion of this Court.
Judgments entered in cause numbers 6707 and 6708 manifest appellant’s
convictions for aggravated assault against a public servant and evading arrest or
detention with a motor vehicle. Appellant attacks each via four issues. We address each
in turn.
Issues One and Two—Discovery and Continuance
Through issues one and two, appellant complains about the trial court’s failure to
act upon discovery requests and grant his motion to continue trial, respectively. The
discovery requests and motion to continue were filed in trial court cause numbers 6620
and 6621. The State initiated those prosecutions via indictments filed on May 18, 2021.
Yet, the trial court dismissed each of those causes on December 16, 2021, pursuant to
the State’s motion.
Dismissing a criminal cause terminates that particular prosecution or action. See
State v. Eaves, 800 S.W.2d 220, 224 (Tex. Crim. App. 1990) (stating that when a trial
court sets aside the charging instrument, the accused is discharged from the accusation,
no case pends against him regarding that accusation, and “as surely as if the information
had been ‘dismissed,’ the prosecution, the criminal action, terminate[s]”); Garcia v. Dial,
596 S.W.2d 524, 528 (Tex. Crim. App. 1980) (stating that dismissing a prosecution
discharges the accused and no case pends against him involving those particular
charges). The trial court also loses jurisdiction to act further in the dismissed cause.
Garcia, 596 S.W.2d at 528; State v. Thaxton, No. 07-04-00032-CR, 2004 Tex. App. 2 LEXIS 8601, at *6–7 (Tex. App.—Amarillo Sept. 24, 2004, no pet.) (mem. op., not
designated for publication). So, in the trial court dismissing cause numbers 6620 and
6621, the prosecutions ended without a substantive adjudication. Therefore, matters
pending in each (like discovery requests, motions to continue and rulings thereon)
became moot.2 See BLACK’S LAW DICTIONARY (11th ed. 2019) (defining moot as “having
no practical significance; hypothetical or academic”).
Moreover, the records before us fail to reveal that appellant filed written discovery
requests in cause numbers 6707 and 6708 akin to those earlier filed in the dismissed
prosecutions. However, we find, in 6707 and 6708, documents entitled “Discovery
Compliance Form Under Article 39.14, Code of Criminal Procedure” signed by counsel
for both the State and appellant; they acknowledge appellant’s receipt of discovery from
the State. So, it appears discovery was provided in each cause. And, most importantly,
appellant fails to specify what, if anything, was denied him that he formally requested in
cause numbers 6707 and 6708.
We overrule issues one and two.
Issue Three—Reindictment
Through issue three, appellant complains of a purported due process violation. It
pertains to the absence of opportunity to contest his reindictments in cause numbers 6707
and 6708. Allegedly, he was entitled to notice and hearing before that could be done.
Yet, the State argues that the complaint was never broached to the trial court. Our own
perusal of the record failed to uncover a motion or request seeking such opportunity. Nor
2 Incidentally, appellant sought to continue the December 2021 trial date. The trial court convened trial in June of 2022. Thus, he, in effect, obtained the earlier requested delay.
3 does appellant provide us with record cites illustrating that he broached his “due process”
complaint with the trial court. This is problematic since allegations of denied due process
are generally waived unless preserved. Jones v. State, No. 07-23-00359-CR, 2024 Tex.
App. LEXIS 1967, at *3 (Tex. App.—Austin Mar. 24, 2020, no pet.) (mem. op., not
designated for publication); see also Crim v. State, No. 03-19-00445-CR, 2020 Tex. App.
LEXIS 9729, at *8–9 (Tex. App.—Austin Dec. 11, 2020, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant waived his due process complaint by
neglecting to urge it before the trial court). Because we cannot find where appellant
preserved the substance of his third issue, his complaint was waived.
Issue three is overruled.
Issue Four—Suppression
Through his fourth and final issue, appellant complains about the denial of his
motion to suppress. It involved a traffic stop for which there allegedly was “no articulated
reasonable suspicion of criminal activity for the stop.” Yet, the testimony of the trooper
who detained him and a video of what transpired immediately before the stop belied this.
In the video, one sees appellant in a white SUV approach the trooper. The latter
had pulled to the right just feet before entering a residential intersection. The white SUV
then proceeds straight through the intersection despite having his left turn blinker
engaged. Five to six seconds lapse before the trooper performs a U-turn, apparently to
follow appellant.3 By then, though, appellant had completed a left at the ensuing
intersection and proceeded down the block. As the officer also turned left at the same
3 The trooper recognized appellant as someone he stopped several months earlier. That detention led to the trooper’s discovery that appellant lacked a valid driver’s license.
4 intersection, appellant’s vehicle could be seen. By then, he had come to the next
residential intersection and again turned left. Furthermore, his vehicle had already
proceeded several car lengths down the road. The distance travelled compared to the
short amount of time that lapsed tends to confirm the trooper’s accompanying testimony
about seeing appellant increase the speed of his vehicle. Also captured by the video is
a stop sign at the intersection through which appellant had just passed. The length of the
block preceding the intersection and stop sign, the nominal time that transpired between
appellant’s first and second left turns, and his distance from the intersection when his
movement was again caught on video permits a fact finder to reasonably infer that
appellant failed to heed the stop sign. To that we add the trooper’s testimony about his
having yet attempted to initiate a stop. Purportedly that was not attempted until after
appellant could be seen driving on the left side of the road to complete a rather quick right
turn at the next residential intersection.
An officer need only have a reasonable belief that a traffic violation occurred. State
v. Ellis, No. 04-12-00589-CR, 2013 Tex. App. LEXIS 2467, at *8–9 (Tex. App.—San
Antonio Mar. 13, 2013, no pet.) (mem. op., not designated for publication); Butler v. State,
300 S.W.3d 474, 480 (Tex. App.—Texarkana 2009, pet. ref’d). The State need not prove
one actually occurred. Id. Furthermore, the commission of a traffic violation in an officer’s
presence authorizes a temporary detention. Walker v. State, No. 11-16-00103-CR, 2018
Tex. App. LEXIS 1743, at *4 (Tex. App.—Eastland Mar. 8, 2018, no pet.) (mem. op., not
designated for publication). And, that is the situation here.
The evidence described earlier allowed the trial court (as fact finder) to conclude
that an officer in the trooper’s position could have reasonably believed appellant
committed several traffic violations. So too could it conclude, from the evidence, that 5 those violations occurred before the trooper commenced the detention. One such
violation consisted of failing to stop at a stop sign. See TEX. TRANSP. CODE ANN.
§ 544.010(a) (stating that the operator of a vehicle approaching an intersection with a
stop sign shall stop unless directed to proceed by a police officer or traffic signal). The
other involved the failure to drive on the right side of the road. See TEX. TRANSP. CODE
ANN. § 545.051(a) (requiring same except in a few itemized circumstances). Additionally,
the pertinent standard of review obligates us to defer to the trial court’s findings when
supported by the evidence. State v. Cabral-Tapia, 572 S.W.3d 751, 753 (Tex. App.—
Amarillo 2019, pet. ref’d). And, because of that we cannot say the trial court’s denial of
the motion to suppress fell outside the zone of reasonable disagreement and constituted
an instance of abused discretion. See id. (stating that we review the decision to deny
suppression under the standard of abused discretion and discretion is abused when the
ruling falls outside the zone of reasonable disagreement).
We overrule issue four. And, in having overruled each issue, we also affirm the
judgments entered in cause numbers 6707 and 6708.
Brian Quinn Chief Justice
Do not publish.