Mark William Irving v. State

• Court: Court of Appeals of Texas
• Decided: June 20, 2002
• Docket: 13-01-00347-CR
• Status: Published

Opinion

                                   NUMBER 13-01-347-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

MARK WILLIAM IRVING,                                                       Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                             On appeal from the County Court

                                   of Hardin County, Texas.

                                   O P I N I O N

                  Before Justices Dorsey, Hinojosa, and Rodriguez

                                  Opinion by Justice Dorsey

Mark William Irving appeals his conviction for the offense of unlawfully carrying a weapon.  By four issues^[1] he contends that he was denied ten days to file responsive pleadings, and he challenges the probable cause to support the stop and search of his vehicle and his warrantless arrest.  We affirm.

                                                         I. Facts

On March 3, 2001, appellant was driving westbound on Highway 418 in Hardin County when Officer Watson saw that he was driving without a seatbelt and that his vehicle did not have an inspection sticker.  He saw appellant stop in a parking lot, get out of the vehicle, and lock it.  Watson pulled in behind him and asked to see his driver=s license and insurance.  Upon learning that appellant did not have either item he arrested him.  Officers Watson and Montalvo conducted an on-site inventory of the contents of his vehicle.  During the inventory Montalvo saw a Davis .380 handgun with ammo clip laying on the front seat of appellant=s vehicle.  Appellant did not have a permit for the weapon.  After the police seized the weapon appellant was taken into custody, and his vehicle was towed away. 

Appellant testified that he did not give the police permission to search his vehicle.  He testified that the police took the keys from his pocket, unlocked his car, and searched it.

                                                      II. Analysis

The first issue is whether probable cause existed to support the stop and the warrantless arrest.

                                                        The Stop

An officer may lawfully stop and detain a person for a traffic violation.  McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Howard v. State, 888 S.W.2d 166, 172 (Tex. App.BWaco 1994, pet. ref=d) (stop of vehicle lawful provided police had reasonable suspicion of traffic violation either on automobile or by occupant).  Our traffic laws require that a motor vehicle registered in this state must be inspected,  see Tex. Transp. Code Ann. ' 548.051(a) (Vernon Supp. 2001), and that an inspection sticker shall be attached to or produced for a vehicle in the manner required.  See Tex. Transp. Code Ann. ' 548.255(a) (Vernon 1999).  Further a person must wear a seatbelt when operating a motor vehicle.  Tex. Transp. Code Ann. ' 545.413 (Vernon 1999 & Supp. 2001).  Under the facts of this case appellant was not wearing his seatbelt and did not have an inspection sticker.  Accordingly Watson lawfully stopped him for violating the traffic laws.  See Madison v. State, 922 S.W.2d 610, 612 (Tex. App.BTexarkana 1996, pet. ref'd).

                                                Warrantless Arrest

Having validly stopped and detained appellant Watson was authorized to investigate whether he had a valid driver=s license or proof of insurance.  Tex. Transp. Code Ann. '' 521.025, 601.053 (Vernon Supp. 2001); Davis v. State, 947 S.W.2d 240, 245 n.6 (Tex. Crim. App. 1997).  With certain exceptions not applicable here an officer may arrest without a warrant a person he finds committing a traffic offense.^[2]  State v. West, 20 S.W.3d 867, 871 (Tex. App.BDallas 2000, pet. ref=d).  See Tex. Transp. Code Ann. ' 543.001^[3] (Vernon 1999) (traffic violator may be arrested without warrant).

Here after Watson lawfully stopped appellant he discovered that appellant did not have a driver=s license or proof of insurance.  Thus appellant was in violation of at least four traffic laws.^[4]  Accordingly Watson was justified in arresting appellant without a warrant.  See Madison, 922 S.W.2d at 612; Valencia v. State, 820 S.W.2d 397, 399 (Tex. App.B Houston [14th Dist.] 1991, pet. ref'd).  We overrule issue one.                      Inventory Search      

The second issue is whether the police lawfully searched appellant=s vehicle.  After making a lawful arrest an officer may search a suspect's vehicle for the purpose of taking an inventory.  Colorado v. Bertine, 479 U.S. 367, 372 (1987); South Dakota v. Opperman, 428 U.S. 364, 375 (1976); Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App. 1986).  In Delgado the court stated:

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), it was held that inventories conducted pursuant to standard police procedures are reasonable.  The purpose of an inventory is to protect the owner's property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from potential dangers.  Further, in Opperman the Court found no need to consider the existence of less intrusive means of protecting the police and the property in their custody‑‑such as locking the car or impounding it in safe storage under guard.

One of the instances in which an automobile may be validly impounded and inventoried is where the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available other than impoundment  to insure the protection of the vehicle.

Delgado, 718 S.W.2d at 721.

Here appellant was placed under custodial arrest, and because he had no driver=s license and was the only person in the vehicle, no other alternatives were available other than impoundment to insure the protection of the vehicle.  Watson=s testimony was that the police department=s standard policy was to inventory vehicles once an officer had made an on-site arrest.  During the inventory search the police discovered, in plain view, the weapon on the front seat of appellant=s car.  Under the facts and circumstances of this case we conclude that the weapon seized as the result of the search of the vehicle was lawfully obtained.  We overrule the second issue.

                                Probable Cause For The Charged Offense

The third issue is whether probable cause exists to support the charge of unlawful carrying of a weapon.  Section 46.02(a) of the Texas Penal Code provides that a person commits the offense of unlawful carrying a weapon if the person Aintentionally, knowingly, or recklessly carries on or about his person a handgun, . . . .@  Tex. Penal Code Ann. ' 46.02(a) (Vernon Supp. 2001).  Here the handgun was found on the front seat of appellant=s vehicle.  Appellant was the only person in the vehicle.  We hold that probable cause exists to support the charge of unlawfully carrying a weapon.  We overrule the third issue

                                           Articles 27.11 and 27.12

By his fourth issue appellant complains that he did not have ten days to file responsive pleadings pursuant to articles 27.11 and 27.12 of the Texas Code of Criminal Procedure.  Article 27.11 states:  In all cases the defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings.  Tex. Code Crim. Proc. Ann. art. 27.11 (Vernon 1989).  Article 27.12 provides that:  In cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days time mentioned in the preceding Article to file written pleadings after such service.  Tex. Code Crim. Proc. Ann. art. 27.12 (Vernon 1989).

The purpose of the "right to time" statute is to afford the accused or his counsel a right to carefully examine the formal accusation and to prepare and file any necessary pleadings pertaining thereto.  Oliver v. State, 646 S.W.2d 242, 245 (Tex. Crim. App. 1983); Ashcraft v. State, 900 S.W.2d 817, 830 (Tex. App.BCorpus Christi 1995, pet. ref=d).  When timely and properly invoked the statutory ten days must be afforded the accused.  Oliver, 646 S.W.2d at 245; Ashcraft, 900 S.W.2d at 830.

Under articles 27.11 and 27.12 an adverse ruling from the trial court is necessary in order to preserve error.  Oliver, 646 S.W.2d at 245; Young v. State, 752 S.W.2d 235, 237 (Tex. App.B Fort Worth 1988), aff'd per curiam, 796 S.W.2d 195 (Tex. Crim. App. 1990).  Here appellant did not request the ten days or object to proceeding to trial.  By not objecting to proceeding to trial or requesting a continuance until the ten days expired appellant waived his right to the ten days provided by articles 27.11 and 27.12.  See Young, 752 S.W.2d at 237.  We hold that appellant waived the provisions of articles 27.11 and 27.12.  We overrule issue four.

We affirm the trial court's judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 20th day of June, 2002.

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^[1]Appellant has filed a pro se brief which does not specifically raise issues for review.  We have determined these issues based upon the arguments and statements made in the brief.  The State did not file a brief in this case.

^[2]An officer is required to release a class C misdemeanor offender upon citation only for speeding and open container violations.  See Tex. Transp. Code Ann. ' 543.004(a) (Vernon Supp. 2001); see also Tex. Code Crim. Proc. Ann. art. 14.06(b) (Vernon Supp. 2001).

^[3]Section 543.001B Arrest Without Warrant Authorized B states:  AAny peace officer may arrest without warrant a person found committing a violation of this subtitle.@  Tex. Transp. Code Ann. ' 543.001 (Vernon 1999).

^[4]See Tex. Transp. Code Ann. ' 545.413 (Vernon Supp. 2001) (operating a motor vehicle without wearing a seat belt); Tex. Transp. Code Ann. '' 521.021, 521.025 (Vernon Supp. 2001) (driving a motor vehicle without a license); Tex. Transp. Code Ann. ' 548.255(a) (Vernon 1999) (inspection sticker); Tex. Transp. Code Ann. ' 601.053 (Vernon 1999) (proof of financial responsibility).