Richard Earl Driver, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 3, 2015
• Docket: 05-14-00136-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed June 3, 2015.

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-14-00135-CR No. 05-14-00136-CR

RICHARD EARL DRIVER JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199-80014-2013 & 199-80032-2013

MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill 1 Opinion by Justice Brown Appellant Richard Earl Driver Jr. appeals his convictions for fraudulent use or possession

of identifying information and burglary of a habitation. In three points of error, appellant

contends the trial court erred in denying his motion to suppress and contends the evidence was

insufficient to prove he committed the offenses. We affirm the trial court’s judgments.

BACKGROUND

In November 2012, a Department of Public Safety trooper pulled appellant over for

speeding. The trooper ended up searching appellant’s vehicle and finding stolen property in it.

As a result, appellant was indicted for possessing the identifying information of Christopher

1 Justice Bill Whitehill succeeded Justice Kerry FitzGerald, a member of the original panel, following Justice FitzGerald’s retirement. Justice Whitehill has reviewed the briefs and the record before the Court. See TEX. R. APP. P. 41.1(a). Munson and for burglary of Shannon Carmichael’s habitation. Appellant moved to suppress the

evidence obtained as a result of the traffic stop. After a jury was selected, appellant waived his

right to a jury trial and requested a trial before the court. The trial court heard the motion to

suppress along with the trial.

Dakota Roden, fifteen years’ old at the time of trial, testified that in November 2012, he

lived in Plano with his mother, Shannon Carmichael, his younger brother, and a friend of his

mother’s. When he got home from school at about 3:30 p.m. on November 12, he noticed that

his mother’s room was really messy and it had not been that way in the morning. There were

clothes everywhere, drawers were open, and the bed was messed up. After going into his

mother’s bedroom, he realized some items were missing, namely some jewelry and a gun.

Carmichael testified that on November 12, 2012, she was living at 6921 Rochelle Drive

in Plano. On that day, she and her boys left at about 8:15 in the morning for school and work.

Carmichael’s friend who was living with them had already left for school. After Carmichael got

a phone call from her son that afternoon, she left work to go home. Carmichael testified the

house was a mess and many things were missing, including two laptop computers, jewelry

boxes, and her gun. While police were at her home investigating, she got a call from DPS

Trooper Kevin Rhodes. Rhodes had pulled someone over and that person had her property.

The next day, Carmichael went to a DPS office to identify some of her property.

Carmichael identified State’s Exhibits 1 through 11 as photographs of her belongings and her

family’s belongings. Most of these items were cards, such as health insurance cards, credit

cards, and driver’s licenses. Some cards were in Carmichael’s name, and some were in her son’s

name or her father’s name. Carmichael also identified State’s Exhibits 12 through 22 as

photographs of more of her belongings, including jewelry, an electronic tablet, and watches.

Some gemstones and diamonds had been removed from the jewelry and were in a separate bag.

–2– Her gun was not recovered. Neither were the laptops and other jewelry. Carmichael did not

know anyone by the name of Richard Driver and did not give him consent to enter her home.

Carmichael estimated the total value of the items stolen to be about $30,000.

Christopher Munson testified that in October 2012, his social security card was missing

after a break-in at his house in Richardson. He had kept the card in a dresser drawer in his

bedroom. In November 2012, the card was returned to Munson after it was found in a car that

had been stopped by law enforcement.

DPS Trooper Kevin Rhodes testified that on the afternoon of November 12, 2012, he was

stopped on the right shoulder of an entrance ramp to the George Bush Tollway. He observed

appellant’s vehicle speeding on the tollway, and his radar clocked appellant at 100 miles per

hour. The speed limit on the tollway was 70 mph. Rhodes pulled over appellant’s vehicle and

also another car that was speeding. The three cars pulled over on the shoulder, with Rhodes’s

patrol vehicle in the middle, appellant’s vehicle behind Rhodes, and the other person in front of

Rhodes. Rhodes’s in-car video system recorded the stop. The trial court admitted the recordings

into evidence as State’s Exhibits 35 and 36 and indicated it would not consider any inadmissible

evidence contained in them.

Appellant was in his car by himself. Rhodes noticed that he was very fidgety, had

exaggerated reflexes, and was very talkative. Rhodes also testified that appellant “moved real

fast throughout his vehicle” when asked for his license and insurance information. Rhodes asked

appellant to step out of his vehicle. Appellant tried to exit his vehicle without unlocking the

door. Appellant slammed his shoulder against the door three times before Rhodes unlocked the

door to help him out. Rhodes noticed two pocket knives in appellant’s pocket and had appellant

hand them over. Rhodes then asked appellant when the last time was he had used any illegal

drugs. Appellant indicated it had been two years. Rhodes asked appellant to lift up his glasses.

–3– Rhodes observed appellant’s eyes were dilated, which indicated to Rhodes that appellant had

been using a stimulant, such as methamphetamine. Rhodes asked to search the vehicle, and

appellant asked him why. Rhodes told him that he was a drug recognition expert and that

appellant was exhibiting signs he was on some kind of upper, such as meth or cocaine.

Appellant did not consent to a search of his car. Rhodes asked again when appellant had last

used illegal drugs. Appellant changed his answer and said he had done meth two days ago and

had been up for three days. Rhodes asked appellant if he had meth in his car, and appellant said

he did not. Then Rhodes asked if appellant had anything illegal in his vehicle, and appellant said

he had syringes. Trooper Rhodes told appellant he was going to call a canine unit. Appellant got

very agitated and upset.

While they were talking, appellant continually put his hands in his pockets. Rhodes kept

telling him not to, and appellant kept doing it. Rhodes asked appellant to remove everything

from his pockets to make sure he didn’t have anything that could hurt him. When asked by the

prosecutor why he had appellant empty his pockets when he was looking for weapons, Rhodes

explained that he had once been with another trooper who performed a pat-down search on

someone who had open needles in his pocket. Rhodes wasn’t wearing gloves and did not want to

get poked. At that point, Rhodes still had two people pulled over and no back up officer on the

scene. Appellant emptied his pockets onto the hood of the patrol car, and Rhodes saw a blue

baggie that appeared to have methamphetamine residue in it. At that point, Rhodes informed

appellant he was going to search his car. Appellant told Rhodes that “it was in the center

console.” Rhodes opened the center console and found meth, a hypodermic syringe with a

needle attached, and a glass pipe. Rhodes placed appellant under arrest and put him in the front

seat of his patrol car.

–4– Trooper Rhodes searched the rest of appellant’s car. The first thing he opened was a

backpack on the passenger seat. In it, he found two of Shannon Carmichael’s expired driver’s

licenses and her social security card and credit cards. He also found an expired license

belonging to someone else. Rhodes read appellant his Miranda rights and asked him where he

got those items. Appellant told Rhodes he got the driver’s licenses out of a mailbox at an

apartment complex. They were sticking out of the mailbox and he grabbed them. Rhodes

confronted appellant with the fact that there were multiple expired licenses for the same person.

Then appellant said he got the credit cards out of a mailbox, not the licenses. Appellant did not

know where the licenses came from. Rhodes asked appellant if he knew Carmichael, and

appellant said he did not. Appellant later told Rhodes he got the licenses and credit cards from a

guy named Lance who makes that stuff. When asked about his conflicting explanations,

appellant said his buddy did not make those cards. Appellant was going to give him the numbers

so he could make other cards. Rhodes found other items taken from Carmichael’s house spread

throughout appellant’s vehicle. He also found Munson’s social security card.

Trooper John Rios testified that on November 12, 2012, he received a call from Trooper

Rhodes asking for assistance. When he arrived at the scene, Rios questioned appellant in

Rhodes’s car. When Rios asked appellant where he got the items in his car, appellant said he got

them from Rick, also referred to as “Biker Rick.” Appellant told Rios that Rick was a drifter.

Appellant said he met Biker Rick at a motel in Garland. Rick asked appellant for rides, and

appellant took Rick places. Appellant did not know what Rick’s last name was. Appellant said

he bought the stuff in his car from Rick when he bought a controlled substance from him. He

paid Rick $200, $50 for the controlled substance and $150 for the stuff. Appellant

acknowledged that he knew the stuff was probably stolen. Appellant told Rios he was going to

take the stuff to a fence, someone who could make it disappear. Rios agreed with Rhodes that

–5– appellant appeared to be under the influence that day and that his condition was consistent with

someone under the influence of methamphetamine. Appellant was jittery and made a lot of

movements.

Plano Police Officer Mike Phillips was assigned to investigate the break-in at

Carmichael’s house. After talking to Trooper Rhodes, it was Phillips’s understanding that

appellant had given an explanation for how he came to be in possession of the stolen property.

On November 16, 2012, Phillips interviewed appellant in the Dallas County jail. Appellant gave

Phillips the name of a Biker Rick, but Phillips wasn’t able to develop the person’s full name or

date of birth.

After reviewing the video recordings of the traffic stop and hearing arguments of counsel,

the trial court denied the motion to suppress and found appellant guilty of burglary and

fraudulent use or possession of identifying information. At the punishment phase, appellant

pleaded true to three prior burglary convictions the State had alleged for purposes of enhancing

punishment. The trial court assessed punishment for the burglary at life in prison and for the

fraudulent possession or use of identifying information at twenty years’ confinement. These

appeals followed.

MOTION TO SUPPRESS

In his first point of error, appellant contends the trial court erred in denying his motion to

suppress because Trooper Rhodes’s search of his pockets violated his rights under the Fourth

Amendment and the Texas Constitution. Specifically, he maintains that Rhodes’s instruction for

him to empty his pockets exceeded a permissible search for weapons because there was no

evidence Rhodes observed any bulge in appellant’s pocket indicating a weapon and it was not

reasonable for Rhodes to fear a needle being used as a weapon. But for this illegal search,

appellant argues, there would have been no search of his car.

–6– We review a trial court’s ruling on a motion to suppress under a bifurcated standard. We

give almost total deference to the trial court’s determination of the historical facts and we review

de novo the court’s application of the law to the facts. Valtierra v. State, 310 S.W.3d 442, 447

(Tex. Crim. App. 2010). Under this standard, the trial court is the sole judge of the credibility of

the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002).

We need not decide whether Trooper Rhodes exceeded the scope of a proper search for

weapons on appellant’s person. His search of appellant’s car, which revealed the stolen cards

and property, was justified under the automobile exception to the warrant requirement. Under

both the United States and Texas Constitutions, an officer may conduct a warrantless search of a

motor vehicle if the vehicle is readily mobile and if the officer has probable cause to believe it

contains evidence of a crime. Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009);

Hollis v. State, 971 S.W.2d 653, 655 (Tex. App.—Dallas 1998, pet. ref’d); see Taylor v. State, 20

S.W.3d 51, 56 (Tex. App.—Texarkana 2000, pet. ref’d). No exigent circumstances are required.

Neal v. State, 256 S.W.3d 264, 283 (Tex. Crim. App. 2008). Probable cause exists when there is

a “fair probability” of finding inculpatory evidence at the location being searched. Id. at 282. If

the automobile exception applies, law enforcement officers may search “every part of the vehicle

and its contents that may conceal the object of the search.” Id. (quoting United States v. Ross,

456 U.S. 798, 825 (1982)).

When Rhodes, trained as a drug recognition expert, came in contact with appellant, it was

readily apparent that appellant was under the influence of a stimulant such as methamphetamine.

Rhodes testified that appellant was very fidgety, had exaggerated reflexes, and was very

talkative. Appellant had trouble exiting his car, and his eyes were dilated, which indicated

stimulant use to Rhodes. When Rhodes asked appellant if he had anything illegal in his car,

–7– appellant said he had syringes. At that point, which was before Rhodes asked appellant to empty

his pockets, there was a fair probability of finding contraband in appellant’s car and thus Rhodes

had probable cause to search it. See TEX. HEALTH & SAFETY CODE ANN. § 481.125(a) (West

2010) (crime of possession of drug paraphernalia); Graves v. State, 307 S.W.3d 483, 490–91

(Tex. App.—Texarkana 2010, pet. ref’d) (after traffic stop, officer made observations that

suggested defendant had made alcohol available to minors, and warrantless search of car was

justified). Under the automobile exception, Trooper Rhodes’s search of appellant’s car without a

warrant was proper. Although the State did not rely on the automobile exception in the trial

court, we should consider any legal theory upon which the trial court’s ruling may be upheld,

regardless of whether that argument was made at trial, when, as here, the prevailing party in the

underlying motion to suppress asserts that argument on appeal. Alford v. State, 400 S.W.3d 924,

929 (Tex. Crim. App. 2013); Turrubiate v. State, 415 S.W.3d 433, 439 (Tex. App.—San Antonio

2013, pet. ref’d). We conclude the trial court did not err in denying appellant’s motion to

suppress. We overrule appellant’s first point of error.

SUFFICIENCY OF THE EVIDENCE

In his second and third points of error, appellant challenges the sufficiency of the

evidence to support his convictions. In his second point of error, he asserts the trial court erred

in finding the State showed that his explanation for the stolen property was unreasonable. In his

third point, he contends the evidence was insufficient to prove beyond a reasonable doubt every

element of the charged crimes.

When reviewing the sufficiency of the evidence, we consider all of the evidence in the

light most favorable to the verdict to determine whether, based on that evidence and the

reasonable inferences therefrom, the factfinder was rationally justified in finding guilt beyond a

reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v.

–8– Virginia, 443 U.S. 307, 318–19 (1979). Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish

guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Further, the factfinder is the

sole judge of the credibility of the witnesses and the weight to be given their testimony. Temple,

390 S.W.3d at 360.

Burglary Conviction

The elements of burglary, as alleged in the indictment, were that appellant, without the

effective consent of the owner Shannon Carmichael, entered a habitation and committed and

attempted to commit theft. See TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). A

defendant’s unexplained possession of property recently stolen in a burglary permits an inference

that the defendant is the one who committed the burglary. Rollerson v. State, 227 S.W.3d 718,

725 (Tex. Crim. App. 2007); Chavez v. State, 843 S.W.2d 586, 589 (Tex. Crim. App. 1992). To

warrant an inference of guilt from possession of stolen property alone, the possession must be

personal, recent, unexplained, and involve a distinct and conscious assertion of the right to the

property by the defendant. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). If

the defendant offers an explanation for his possession of the property, the record must show the

explanation is either false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim.

App. 1977). Whether a defendant’s explanation for possession of the property is true or

reasonable is a question of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana

2001, no pet.).

Appellant contends the evidence is insufficient to prove he committed burglary because

there is no evidence to connect him to the break-in at Carmichael’s house and the State did not

show his explanation that he got the stolen items from Biker Rick to be unreasonable. Appellant

overlooks the fact that his explanation involving Biker Rick was not the first explanation he

–9– gave. When Trooper Rhodes first asked appellant about the stolen cards, appellant explained

that they were sticking out of a mailbox at an apartment complex and he grabbed them. Then

when the trooper questioned why expired driver’s licenses would be in the mail, appellant said

he was only talking about the credit cards. Next appellant said he got the driver’s licenses and

credit cards from a guy who “makes that stuff.” Then when questioned about the differences in

his explanations, appellant explained that his friend did not make those cards. Appellant was

going to supply him with the card numbers so he could make other cards. Appellant next

explained he bought the stolen property from Biker Rick.

The State refuted appellant’s explanation involving Biker Rick by showing that appellant

gave other explanations for his possession of the property when he was first called upon to do so.

The trial court implicitly found that appellant’s explanations for his possession of the property

were unreasonable and the record supports that finding. We conclude the evidence is sufficient

to prove beyond a reasonable doubt that appellant committed burglary.

Fraudulent Use or Possession of Identifying Information

Appellant’s entire complaint in his third point of error about the sufficiency of the

evidence to support his conviction for fraudulent use or possession of identifying information is

found in one sentence in his brief: “Also, a rational trier of fact could not have found the

essential elements beyond a reasonable doubt that Appellant committed the offense of fraudulent

use/possession of identifying information beyond a reasonable doubt with the evidence legally

before the court.” Appellant has not adequately briefed this issue. He has not presented any

argument for his contention the evidence is insufficient nor has he cited to any authorities or to

the record. See TEX. R. APP. P. 38.1(i). We will not speculate as to why appellant thinks the

evidence is insufficient. We have reviewed the evidence in the light most favorable to the

conviction and conclude the evidence is sufficient to support the conviction. See TEX. PENAL

–10– CODE ANN. § 32.51(b) (West Supp. 2014). We overrule appellant’s second and third points of

error.

We affirm the trial court’s judgments.

/Ada Brown/ ADA BROWN JUSTICE

Do Not Publish TEX. R. APP. P. 47

140135F.U05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RICHARD EARL DRIVER JR., Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-14-00135-CR V. Trial Court Cause No. 199-80014-2013. Opinion delivered by Justice Brown. Justices THE STATE OF TEXAS, Appellee Lang and Whitehill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 3rd day of June, 2015.

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RICHARD EARL DRIVER JR., Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-14-00136-CR V. Trial Court Cause No. 199-80032-2013. Opinion delivered by Justice Brown. Justices THE STATE OF TEXAS, Appellee Lang and Whitehill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–13–