Robert Leon Jenkins, Jr. v. State

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00233-CR

No. 10-09-00248-CR

Robert Leon Jenkins, Jr.,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court Nos. 08-03830-CRM-361 and 08-03663-CRF-361

ORDER

            Robert Leon Jenkins was convicted of the offenses of forgery and failure to identify.  Tex. Penal Code Ann. §§ 32.21; 38.02 (Vernon Supp. 2009).  He appealed both convictions.  Counsel for Jenkins filed an Anders brief in each appeal.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).  

            Initially we note that counsel admitted in his Anders brief that he has not reviewed the entire record in these appeals because the reporter’s record (one record for both convictions) is incomplete.  Apparently, exhibits which were introduced into evidence at trial have not been made a part of the reporter’s record.  Reviewing the entire record is a basic premise of the Anders-type procedure.  We must be satisfied that counsel has reviewed the entire record for any arguable claim that might support Jenkins’ appeals.  McCoy v. Court of Appeals, 486 U.S. 429, 442, 108 S. Ct. 1895, 1903-04, 100 L. Ed. 2d 440 (1988).  When the record is incomplete, counsel could not have reviewed the entire record.  For this same reason, counsel was granted a thirty day extension to file his brief.  Rather than notifying us in another motion for an extension of time that his request for a supplemental reporter’s record has not been fulfilled, counsel simply filed his Anders brief.

            Accordingly, the Court makes the following orders.

Brief Stricken

            Counsel’s Anders brief is ORDERED stricken.  All briefing deadlines are suspended, including the deadline for Jenkins’s pro se response, until the matter with the supplemental reporter’s record is resolved. 

Record Due

            It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed.  Tex. R. App. P. 35.3(c).  Further, this Court may enter any order necessary to ensure the timely filing of the appellate record.  Id.  Accordingly, the supplemental reporter’s record is ORDERED to be filed no later than 7 days from the date of this order. 

            Failure to file the reporter’s record as herein ordered will result in an abatement order for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter’s record will be filed.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed May 12, 2010

Publish

eview. The majority states that the standard is “a legal sufficiency standard of review.” ___ S.W.3d at ___; (slip op. at 4). The majority cites no cases in support of this proposition, and I find none. The majority cites only a Texas Supreme Court case on the legal-sufficiency review in termination-of-parental-rights cases. Id. at ____ n.4; (slip op. at 4 n.4) (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).

      Rather, a trial court’s ruling on a motion to suppress evidence in criminal cases is “subject to the discretion of the court.” Tex. Code Crim. Proc. Ann. art. 28.01(6) (Vernon 1989). On appeal, “[g]enerally, a trial court’s ruling on a motion to suppress is reviewed under an abuse of discretion standard.” Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). Only when the case presents the appellate court with “a question of law based on undisputed facts” does the court review the ruling de novo. Id. Otherwise, a reviewing court must “give almost total deference to a trial court’s determination of historical facts.” Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003); accord Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court is “obligated to uphold the trial court’s ruling on [an] appellant’s motion to suppress if that ruling was supported by the record.” Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 158 L.Ed.2d 469 (2004). Where the trial court does not make express findings of fact, appellate courts “review the evidence in a light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported in the record.” Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

      In particular, “[t]he validity of a consent to search is a question of fact to be determined from all the circumstances.” Rayford, 125 S.W.3d at 528. “At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony.” Id. The standard of review is “whether the trial court could have reasonably denied appellant’s motion to suppress given the record evidence and given the applicable federal and state law.” Armendariz, 123 S.W.3d at 404. “[A] search is valid if, in light of all the circumstances, the officers’ belief that they had consent to search was objectively reasonable.” Moreno v. State, 821 S.W.2d 344, 351 (Tex. App.—Waco 1991, pet. ref’d); see United States v. Zamoran-Coronel, 231 F.3d 466, 470 (8th Cir. 2000).

      “The suspect’s lack of fluency in the language used to solicit consent suggests involuntariness, but it is seldom determinative.” 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 12.33 n.19 (Supp. 2003) (citing Mendoza v. State, 30 S.W.3d 528, 530-31 (Tex. App.—San Antonio 2003, no pet.)). Indeed, “the ability of a suspect to speak fluent English or the ability of a police officer to speak fluent Spanish is not a prerequisite to a valid consent to search.” Cancel v. State, No. 01-02-00587-CR, 2003 Tex. App. LEXIS 1767, at *12 (Tex. App.—Houston [1st Dist.] Feb. 27, 2003, no pet.) (not designated for publication); accord Moreno, 821 S.W.2d at 351; Mendoza, 30 S.W.3d at 529-31. Rather, a “defendant does not have to have a perfect command of the English language in order to give voluntary consent; it is enough that he understand English well enough to comprehend the situation.” United States v. Verduzco, No. 92-1963, 1993 U.S. App. LEXIS 14972, at *8 (7th Cir. June 18, 1993).

      Here, the record does not even show that the trial court ruled on Appellant’s motion to suppress evidence, much less that the court made findings of fact. Assuming that the court denied the motion, when we review the evidence, as we must, in the light most favorable to the ruling, that evidence supports the ruling. The majority states that the arresting officer “said that Appellant ‘did not speak very much English, so we did have something of a language barrier’” and “maintained . . . that Appellant ‘spoke very little’ English.” ___ S.W. 3d at ___, ___; (slip op. at 3, 4). This is false. The officer so testified concerning the passenger of the truck that Appellant was driving. (R.R. at 9, 31.) Of Appellant, to the contrary, the officer testified as follows. He requested of Appellant and received from him consent to search the truck that Appellant was driving. Appellant answered his questions, and he and Appellant “communicated quite well.” He asked Appellant for consent more than once because he “wanted to make sure [Appellant] understood.” The second time he asked for consent, Appellant “motioned back to the vehicle and said [he] c[ould] check it out.” Appellant never attempted to withdraw his consent during the extensive search of the truck. On the basis of this evidence, the trial court could have reasonably concluded by clear and convincing evidence that the officer reasonably believed that Appellant consented to the search of the truck, and thus denied the motion to suppress.

      Accordingly, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed May 12, 2004

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