Perry Wayne Jerden v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2003
• Docket: 06-03-00079-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00079-CR ______________________________

PERRY WAYNE JERDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 17,518-2003

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Perry Wayne Jerden appeals from his conviction on his plea of guilty pursuant to a plea agreement. He was convicted of unlawful possession of a firearm (enhanced). The court set punishment at twelve years' imprisonment and a $2,000.00 fine, in accordance with the terms of the plea agreement. Jerden filed a notice of appeal pro se.

Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Jerden's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:

(2) A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which defendant's plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex. R. App. P. 25.2(a).

The trial court filed a certification of defendant's right of appeal in accordance with Rule 25.2(a)(2). It states that this "[i]s a plea-bargain case, and the Defendant has NO right of appeal."

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Jerden pled guilty, and when adjudged guilty of that crime, he entered into a plea agreement as to punishment that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Jerden was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, No. 01-03-00037-CR, 2003 WL 1090438 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet.). ⁽¹⁾

We hold that we lack jurisdiction over this appeal. We dismiss the appeal.

Donald R. Ross

Justice

Date Submitted: June 26, 2003

Date Decided: June 27, 2003

Do Not Publish

1. A plea agreement by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the plea agreement and guilty plea are voluntarily and understandably made; however, in Cooper v. State, the Texas Court of Criminal Appeals determined that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on appeal. 45 S.W.3d 77, 82 (Tex. Crim. App. 2001).

nt-family: 'Times New Roman', serif">Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            Mark Curtis Richardson appeals from his conviction, on his plea of guilty pursuant to a negotiated plea agreement, for possession of a controlled substance with intent to deliver. His contentions of error are directed at the trial court's ruling on his pretrial motion to suppress.

            The original hearing on the motion to suppress was conducted four years before the trial. The motion to suppress was overruled after a hearing and after the parties filed briefs on the issue November 24, 1998. On October 31, 2002, a hearing was held on Richardson's motion to reconsider his motion to suppress based on new authority presented to the court. The trial court overruled the motion to reconsider November 6, 2002. Richardson pled guilty on January 10, 2003, and was assessed a twelve-year sentence.

            Richardson first asks this Court to abate the appeal because he was not provided with a reporter's record of the guilty plea proceeding, and argues that one is necessary to complete his brief. We recognize, however, that a trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. There is no suggestion or indication the suppression issue was revisited at the time of the guilty plea. Accordingly, there is no indication that any matter of any relevance to the appeal that may be brought in this situation was addressed in any other context than the hearing on that issue. Under these facts, abatement for preparation of a reporter's record from the guilty plea is unnecessary. The request is denied.

            Richardson contends the trial court erred by overruling his motion to suppress evidence discovered during a search of his vehicle. The record shows Richardson was driving on an interstate highway and was stopped by a policeman (Deputy James Benson), who testified he saw the car swerve onto the shoulder about a foot, for about one or two seconds. He also testified there was another vehicle between his police vehicle and Richardson's vehicle, which was traveling approximately fifteen to twenty feet behind Richardson's vehicle in the inside lane. He thought Richardson's action of driving across the white line was not safe and he was "concerned with . . . them coming back into their lane of traffic and possibly going the other direction." The officer testified he pulled Richardson over for failure to maintain a single lane. Officer Benson testified that, after stopping the car and questioning the occupants (the passenger lied about his name), he asked for—and was given—permission to search the car. As a result of the search, he found cocaine in a box containing dirty clothes.

            Richardson contends the traffic stop was illegal and thus the resulting search was necessarily also illegal. He directs this Court to the recent opinion in Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002), for a discussion of a very similar situation.

            As correctly pointed out by counsel, in this case, as in Corbin, the driver veered onto the shoulder a distance of only about a foot, for only one or two seconds. In our initial opinion in Corbin, we held there was insufficient evidence to indicate from the information that the appellant failed to maintain his lane in an unsafe manner, and thus the stop was unreasonable. The Texas Court of Criminal Appeals did not review our conclusion on that matter, but reversed our determination that the motion to suppress was properly denied because Officer Benson was exercising his community caretaking function in making the stop. Id. at 278–79.

            The stop in this case, as in Corbin, was predicated on evidence of a violation of Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999), which provides that, "An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely." As we recognized in Corbin, this statute does not provide that any movement over a dividing line between lanes or between a lane and a shoulder is necessarily a criminal offense, but instead presumes a certain degree of common sense will be applied to the observation of the driver's actions by requiring that a driver shall drive "as nearly as practical entirely within a single lane . . . ." and that he or she may not move from the lane unless the movement can be made safely. Tex. Transp. Code Ann. § 545.060(a); Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.—Texarkana 2000), rev'd, 85 S.W.3d 272 (Tex. Crim. App. 2002).

            In our analysis of a traffic stop, the question is whether the State proved the reasonableness of the stop. See Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986). An officer may stop and briefly detain a person for investigative purposes even in the absence of evidence rising to the level of probable cause if the officer has a reasonable suspicion supported by articulable facts which, taken together with rational inferences from those facts, lead him to conclude the person is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).

            In determining whether the intrusion was reasonable, an objective standard is applied. The question is whether the facts available to the officer at the moment of the seizure or search would lead a person of reasonable caution to believe that the action taken was appropriate. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). Because the facts are not in dispute, we make a de novo determination of whether those facts give rise to the requisite "reasonable suspicion."

            The State suggests that, in this case, the speed of the vehicle driven by Richardson was high. However, the officer's testimony clearly shows that Richardson was not exceeding the speed limit and the speed was not extraordinary. The distinction in this and Corbin is that here another vehicle was nearby Richardson's vehicle and the officer testified that moving the vehicle across the lane onto the shoulder was not safe. In Corbin, the stop was in the early morning hours with no nearby traffic. In that case, the driver was driving only fifty-two miles per hour in a sixty-five mile-per-hour zone and went over the line for only about twenty feet. Here, there is evidence another vehicle was following fifteen to twenty feet behind Richardson's vehicle in the inside lane. Richardson's vehicle was in the outside lane closest to the shoulder. Officer Benson testified he thought the movement onto the shoulder was not safe and further said he was "concerned with . . . them coming back into their lane of traffic and possibly going the other direction."

            In Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref'd), the defendant crossed eighteen to twenty-four inches into a lane of traffic one time, "very few" other vehicles were near, the arresting officer thought it was unsafe because he was concerned about the defendant's well-being, but the evidence showed no danger to other vehicles, id. at 868, and there were no objective circumstances (time, location, movement) indicating the driver was intoxicated. Id. at 870. There the Austin court held:

The remaining issue is whether (1) a single instance (2) of crossing a lane dividing line by 18 to 24 inches (3) into a lane of traffic traveling the same direction (4) when the movement is not shown to be unsafe or dangerous, gave [the officer] a reasonable basis for suspecting that appellant had committed a . . . criminal-traffic offense. If it did, the stop was valid . . . . We conclude, however, under the facts of this case it did not.

Id. at 870–71.

            This case is distinguishable from Hernandez because here there is specific testimony about the proximity of another vehicle, leading the officer to conclude the lane change was not safe.

            In Martinez v. State, 29 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd), that court approved a stop of a vehicle that swerved once onto the shoulder of a busy highway. The facts in the Martinez case are very similar to this case. The officer observed the defendant swerve onto the shoulder. The testimony showed that traffic was moderate to heavy. The court concluded it was not unreasonable for the officer to conclude such action was unsafe.

            Although we find this case to be a close call, we conclude that, because the officer testified the movement was unsafe, and because there was another vehicle nearby, the evidence was sufficient for the officer to have a "reasonable suspicion" that Richardson's movement of the vehicle from his lane was not done safely. The contention of error is overruled.

            Due to our disposition of the first issue, it is unnecessary to address the State's alternative argument that the stop was reasonable based on the community caretaking theory.

            We affirm the judgment.

                                                                        Jack Carter

Date Submitted:          December 5, 2003

Date Decided:             January 9, 2004