Victoria Morin v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2015
• Docket: 07-14-00101-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00101-CR ________________________

VICTORIA MORIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court at Law No. 2 Lubbock County, Texas Trial Court No. 2012-472569; Honorable Drue Farmer, Presiding

November 16, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Victoria Morin, was convicted by a jury of possession of marihuana, in

an amount of two ounces or less (a Class B misdemeanor)1 and assessed a fine of

$1,250. On appeal, Appellant asserts the trial court erred by denying her motion to

suppress evidence because (1) Appellant’s detention for a traffic violation was premised

on a chapter of the Texas Transportation Code that is unconstitutionally vague and (2)

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010). Appellant’s incriminating statements were the result of an unconstitutional interrogation.

We affirm.

BACKGROUND

On December 6, 2012, an information was filed alleging that, on or about

November 20, she intentionally or knowingly possessed a usable quantity of marihuana

in an amount of two ounces or less. On May 20, 2013, Appellant filed a motion to

suppress alleging she was arrested without probable cause, her statements were

involuntary and coerced, she was deprived of counsel, and all evidence underlying her

arrest was tainted by an illegal/unlawful detention.

HEARING ON MOTION TO SUPPRESS

At a hearing held August 22, 2013, Corporal Jason Johnson of the Lubbock

County Sheriff’s Office testified he stopped Appellant the night of the offense because

her high-mounted center taillamp was not working. Johnson first made contact with

Appellant on the driver’s side while Corporal James Owens approached the passenger

side. When Appellant rolled her window down, Johnson noticed an overwhelming odor

of burnt marihuana coming from inside the vehicle. He asked Appellant for her driver’s

license and, after she handed it to him, asked her to step out of the vehicle. After she

stepped out, he informed her of the traffic violation and showed her the inoperable high-

mounted center taillamp. As she spoke to him, he noticed the smell of burnt marihuana

on her breath.

After informing her of the traffic violation, he told her “[l]ets talk about the odor of

marihuana coming from inside the vehicle.” She pointed at the passenger and said he

had been smoking marihuana. Johnson asked her if there was any more marihuana in 2 her vehicle and indicated he was going to conduct a search of the vehicle. She replied

in the affirmative indicating there was more marihuana in her purse. Johnson then

Mirandized2 her, after which she indicated she understood her rights. He then asked

her if there was anything she wanted to tell him and she replied “nothing other than the

marihuana.”3 Corporal Owens asked the passenger to step out of the vehicle and

retrieve a dog from the back seat. Corporal Johnson then called for another unit and

when Sergeant William White arrived, he watched Appellant and her passenger.

Johnson then retrieved Ringo, his drug-detecting dog, from his patrol vehicle and

ran Ringo around the vehicle. Ringo alerted to the driver’s and passenger’s side doors

and to a black purse on the driver’s side in the floorboard. Officer Eric Chadis arrived

shortly and conducted a search of Appellant’s vehicle. He discovered in Appellant’s

purse a green leafy substance weighing 15.1 grams that tested positive for marihuana.

Appellant was placed under arrest and received a written warning for the defective high-

mounted center taillamp.

At the hearing’s conclusion, Appellant argued there was no reasonable suspicion

or probable cause for the traffic stop because there was no traffic violation when

Appellant was pulled over and detained. In her brief filed in support of her motion to

suppress, Appellant asserted the traffic stop was not based on reasonable suspicion

and, therefore, her statements regarding the contraband found in her vehicle were the

product of an improper custodial interrogation. Her motion to suppress was

subsequently denied.

2 See Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3 This exchange occurred on the video camera attached to Johnson’s patrol vehicle. The video was offered and admitted as State’s Exhibit No. 4. 3 TRIAL

Prior to voir dire, Appellant re-urged her motion to suppress generally asserting

violations of her right to due process, freedom from unreasonable search and seizure

and warrantless searches, and the grounds previously advanced in her original motion.

During the State’s case-in-chief, she re-urged that the traffic stop was not a valid stop

based on the argument that having an inoperable high-mounted center taillamp was not

a violation of the law in Texas. Corporal Johnson’s testimony and the videotape of the

traffic stop mirrored the evidence presented at the suppression hearing.

After the State rested, Appellant’s sole witness testified that a high-mounted

center taillamp was not required during a state vehicle inspection. There was no

evidence presented concerning whether or when Appellant’s vehicle was last inspected.

After she rested her case-in-chief, Appellant re-urged her motion to suppress alleging:

(1) there was not a noticeable smell of marihuana coming from her vehicle, (2) Corporal

Johnson did not act in good faith when he initiated the traffic stop, (3) Appellant’s

statements were obtained as a result of a Miranda violation, and (4) Corporal Johnson

violated her constitutional rights “as stated in her Motion to Suppress and supporting

brief.” The trial court denied her motion and the jury subsequently found her guilty of

possession of marihuana in an amount of two ounces or less and assessed a fine of

$1,250.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In its Findings of Fact and Conclusions of Law, the trial court determined

Corporal Johnson performed a lawful traffic stop pursuant to section 547.3215 of the

Texas Transportation Code requiring a motor vehicle to be in compliance with current

4 federal standards stated in chapter 49 and section 571.108 of the Code of Federal

Regulations.4 He also determined that Texas law incorporates and does not conflict

with federal law. Based on these determinations, the trial court found Corporal Johnson

had a reasonable suspicion for performing the traffic stop.

Based upon the odor of marihuana coming from her vehicle and person, positive

alerts by Ringo, Appellant’s admissions that her passenger had been smoking

marihuana, and she possessed one-half ounce of marihuana in her purse, the trial court

determined Corporal Johnson had probable cause to search her vehicle. The trial court

also determined Appellant was not in custody at the time of her admissions because (1)

the traffic stop shifted to an investigatory detention when Corporal Johnson smelled

marihuana coming from the vehicle and later on Appellant’s person, (2) his questions

regarding the source of the odor were part of his investigatory detention, and (3)

although Appellant was not free to leave the scene, she was not yet the focus of an

interrogation or under arrest. The trial court concluded Appellant’s statements were

voluntary and admissible, but even if they were not, probable cause to search

Appellant’s vehicle existed independently of Appellant’s statements made prior to being

Mirandized.

4 The Texas Transportation Code requires that a motor vehicle be equipped with at least two rear-mounted taillamps which are “plainly visible at a distance of 1,000 feet from the rear of the vehicle.” See TEX. TRANSP. CODE ANN. § 547.322(a), (c), (d) (West 2011). That same code also requires that a motor vehicle be equipped with at least two rear-mounted stoplamps which “emit a red or amber light, or a color between red and amber, that is . . . displayed when the vehicle service brake is applied.” Id. § 547.323(a), (c), (d).

In addition to the general lighting requirements of §§ 547.322 and 547.323, a motor vehicle must comply with “the current federal standards in 49 C.F.R. § 571.108; or . . . the federal standards in that section in effect, if any, at the time the vehicle or motor vehicle was manufactured.” Id. at 547.3215. See Schwintz v. State, 413 S.W.3d 192 (Tex. App.—Beaumont 2013, pet. ref’d) (provision of state transportation code governing number of taillamps on vehicles less than 80 inches wide permitted DPS to adopt federal standard requiring high-mounted center taillamp in addition to two stoplamps specified in code and no provision of the code prohibited adoption of the federal standard requiring high-mounted center taillamp). 5 FIRST POINT OF ERROR—UNCONSTITUTIONALLY VAGUE STATUTE

An officer may make a warrantless traffic stop if the “reasonable suspicion”

standard is satisfied. Jaganathan v. State, PD-1189-14, 2015 Tex. Crim. App. LEXIS

920, at *5 (Tex. Crim. App. Sept. 16, 2015); Guerra v. State, 432 S.W.3d 905, 911 (Tex.

Crim. App. 2014). Reasonable suspicion exists if the officer has “specific articulable

facts that, when combined with rational inferences from those facts, would lead him to

reasonably suspect that a particular person has engaged or is (or soon will be)

engaging in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App.

2013). The Texas Transportation Code provides that a person commits an offense if

she operates a motor vehicle that is “not equipped in a manner that complies with the

vehicle equipment standards and requirements established by [chapter 547 of the

Texas Transportation Code].” TEX. TRANSP. CODE ANN. § 547.004(a)(2) (West 2011).

Therefore, before an officer can have reasonable suspicion to believe that a vehicle

equipment offense has occurred, the officer must be aware of facts that support a

reasonable inference that the suspected person operated the vehicle without the

mandated vehicle safety equipment. Abney, 394 S.W.3d at 549. The record in the

present case establishes that Corporal Johnson did in fact observe Appellant operate

her vehicle without an operational high-mounted center taillamp. Accordingly,

reasonable suspicion to stop Appellant’s vehicle existed.

On appeal, Appellant asserts the trial court erroneously denied her motion to

suppress because chapter 547 of the Texas Transportation Code, taken as a whole, is

unconstitutional and void for vagueness because it is unclear whether the operation of a

motor vehicle without an operational high-mounted center taillamp is in fact a traffic

offense. We conclude this assertion is waived because it does not comport with 6 Appellant’s objection at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002) (finding that “[a] point of error on appeal must comport with the objection made at

trial”).

In her written motion to suppress, at the hearing, and at trial, Appellant asserted

(albeit incorrect in the assertion being made) the traffic stop in question was invalid and

unlawful because having an inoperable high-mounted center taillamp was not a violation

of the Texas Transportation Code. For the first time on appeal, she now asserts

chapter 547 of the Texas Transportation Code, taken as a whole, is unconstitutional and

void for vagueness. We find Appellant has failed to preserve error on this issue.

A complaint that could, in isolation, be read to express more than one legal

argument, will generally not preserve all potentially relevant arguments on appeal.

Resendez v. State, 306 S.W.3d 308, 313-15 (Tex. Crim. App. 2009) (a statutory

argument alone is legally distinct from a constitutional argument). See Swain v. State,

181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (arguments that are global in nature and

contain little more than citations to constitutional and statutory provisions are not

sufficiently specific to preserve a legal theory on appeal that was not advanced in the

trial court). A review of the clerk’s record and reporter transcripts leads us to conclude

that Appellant’s first point of error on appeal does not comport with the objections or

arguments made at the suppression hearing, in Appellant’s brief in support of her

motion to suppress, or at trial. Neither was her appellate assertion addressed in the trial

court’s Findings of Fact and Conclusions of Law. Resendez, 306 S.W.3d at 313 (“when

context shows that a party failed to effectively communicate his argument then the error

will be deemed forfeited on appeal”). Because Appellant’s “constitutionally vague”

7 complaint on appeal was not asserted below, the trial judge did not have an opportunity

to rule on whether chapter 547 of the Texas Transportation Code, taken as a whole,

was unconstitutional and void for vagueness. See Lovill v. State, 319 S.W.3d 687, 691

(Tex. Crim. App. 2009) (“specificity requirement met if complaint at trial was clear

enough for the trial judge to understand what the complaining party wanted, why they

were entitled to it, and take corrective action”). Thus, Appellant’s first point of error is

not preserved for our review and is overruled.

SECOND POINT OF ERROR—CUSTODIAL INTERROGATION

Appellant next asserts that admissions made outside her vehicle to the effect that

her passenger had been smoking marihuana and there was more marihuana in her

purse were inadmissible because they were the result of a custodial interrogation made

prior to being Mirandized. Appellant asserts Corporal Johnson’s statement to her, prior

to any Miranda warning, concerning his intent to search her vehicle was, in fact,

calculated to illicit an incriminating response. In response, the State contends

Appellant’s statements were not the result of a custodial interrogation but rather resulted

from an investigatory detention—an argument supported by the trial court’s findings of

fact and conclusions of law. Alternatively, the State argues that if Appellant’s

statements were admitted in error, the error was harmless under a constitutional harm

analysis. See TEX. R. APP. P. 44.2(a).

In its Findings of Fact and Conclusions of Law, the trial court found the

statements in question were “not the product of a custodial interrogation” because

Appellant was the subject of a lawful traffic stop that had merely shifted to an

investigatory detention based on the officer’s smelling what he believed to be

8 marihuana. The trial court found that Appellant was not the focus of the officer’s inquiry

at the time the non-Mirandized statements were made and that those statements were

voluntary. Notwithstanding the almost total deference we would give to the trial judge’s

conclusions, Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997), even

assuming the statements in question were made in response to a custodial

interrogation, the videotape admitted into evidence shows Appellant admitted to the

presence of marihuana in her vehicle after she was Mirandized and prior to the vehicle

being searched. Based on this record, we find the non-Mirandized statements were

cumulative of other evidence properly admitted and the error, if any, in the admission of

those statements did not contribute to Appellant’s conviction or punishment beyond a

reasonable doubt. See TEX. R. APP. P. 44.2(a). See also Clay v. State, 240 S.W.3d

895, 904 (Tex. Crim. App. 2007). Accordingly, any error was harmless and Appellant’s

second point of error is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.