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Steve Kotlarich v. State ( 2003 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    ON MOTION FOR REHEARING





      

    NO. 03-03-00145-CR

    Steve Kotlarich, Appellant


    v.



    The State of Texas, Appellee





    FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

    NO. 96-432-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

    M E M O R A N D U M O P I N I O N  




    We grant appellant's motion for rehearing. Our opinion and judgment of August 29, 2003, are withdrawn and the following substituted therefor.

    In 1996, appellant Steve Kotlarich pleaded guilty to the offenses of sexual assault and indecency with a child by exposure. See Tex. Pen. Code Ann. §§ 22.011, 21.11(a)(2) (West 2003). Pursuant to a plea agreement, the trial court sentenced appellant to ten years' imprisonment for the indecency offense, probated. Pursuant to the same agreement, appellant received a fifteen-year sentence on the sexual assault offense, but was placed on deferred adjudication. In October 1992, the State filed motions to adjudicate on the sexual assault offense and to revoke probation on the indecency offense. After a hearing, the trial court found the State's allegations true in both motions, adjudicated appellant guilty of the sexual assault offense, revoked probation in the indecency offense, and imposed sentences of fifteen years' imprisonment for the sexual assault offense and ten years' imprisonment for the indecency offense (to run concurrently). In one issue on appeal, appellant contends that the evidence was insufficient to show that appellant violated the terms and conditions of his deferred adjudication. (1) We first discuss appellant's contentions concerning the trial court's decision to adjudicate on the sexual assault offense.



    Deferred Adjudication

    Article 42.12 of the Code of Criminal Procedure controls questions concerning adult probation and applications to revoke probation. Tex. Code Crim. Proc. Ann. art. 42.12 (West 1979 & Supp. 2001); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Section 5(b) provides:



    On violation of a condition of [deferred adjudication] community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination . . . .





    Id. § 5(b) (West Supp. 2001).

    The United States Constitution does not require a state to provide appellate courts or a right to appellate review of criminal convictions. Phynes, 828 S.W.2d at 2 (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)). As a result, a state may limit or even deny the right to appeal a criminal conviction. Id. Similarly, nothing in the Texas Constitution guarantees the right to appeal a criminal conviction; that right is provided only by the legislature. Id.

    An appellant whose deferred adjudication probation has been revoked and who subsequently has been adjudicated guilty of the original charge may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (holding that article 42.12, section 5(b) prohibits defendant from raising a claim of error in the adjudication of guilt process); Phynes, 828 S.W.2d at 2 (stating that even if appellant's right to counsel had been violated, he could not use direct appeal as the vehicle by which to seek redress); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) ("the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and not reviewable by this Court").

    Appellant acknowledges that he is not allowed to challenge the adjudication of guilt process in a direct appeal. "Nevertheless, he is pursuing this appeal to demonstrate that the trial court's actions were unreasonable. Once that has been established, Appellant can and will attack the adjudication order via another more appropriate vehicle." When an appellate court lacks jurisdiction over an appeal, it may take no action on that appeal other than dismissal for want of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (when jurisdiction not legally invoked, power of court to act is absent; may only dispose of purported appeal by dismissal for want of jurisdiction); Garcia v. State, 45 S.W.3d 740, 742 (Tex. App.--Austin 2001, pet. ref'd); Boyd v. State, 971 S.W.2d 603, 606 (Tex. App.--Dallas 1998, no pet.). Similarly, we may not reach the merits of appellant's arguments concerning the decision to adjudicate and we dismiss that part of the issue presented for want of jurisdiction. We now turn to appellant's contentions concerning the revocation of his probation for the indecency with a child offense.



    Revocation

    While on probation, appellant lived in Lamarque in Galveston County, Texas. (2) One of appellant's conditions of supervision was that he remain at his residence between the hours of 9:00 p.m. and 6:30 a.m., or within one-half hour of the start or finish of work. At approximately 10:40 p.m. on July 8, 2002, appellant was driving a motorcycle in Pearland, Texas. Officer Steven Weaver, a police officer with the Pearland Police Department, was patrolling in a marked police vehicle, operating his freshly calibrated radar system. Weaver passed appellant as appellant was going in the opposite direction. Based on the radar, Weaver determined that appellant was traveling 63 miles per hour in a 35 mile-per-hour zone. As soon as he passed appellant, Weaver looked in his rearview mirror and noticed the motorcycle's brake lights flash. In his experience, that meant that the driver had observed the police vehicle and was slowing down.

    Weaver then turned his police vehicle around, engaged his overhead lights, and attempted to stop appellant. Appellant turned left onto an intersecting street and began to accelerate. Weaver then activated his siren. Appellant ran a stop sign at the next intersection as he turned right. Weaver continued the pursuit. Appellant ran a red light and made a left turn, followed by a right. Weaver estimated appellant's speed at 70 miles per hour. At this point, the vehicles were traveling through an older neighborhood which was not brightly lit, making the flashing lights on his car stand out even more.

    Appellant continued to flee, failed to stop at another stop sign, made another turn, then finally stopped. Weaver instructed appellant to get on the ground, but appellant did not comply. Instead he argued that Weaver should not arrest him. Weaver wrestled him to the ground and attempted to handcuff him. Appellant repeatedly tried to pull his hands and arms away in an attempt to avoid being handcuffed. Ultimately, appellant was arrested and charged with evading detention and resisting arrest. The State filed a motion to revoke on both grounds. (3)

    Appellant testified that he was unaware that Weaver was following him. Appellant said that he did not hear the siren because he was playing music very loudly. However, Weaver, who at times was within 100 feet of appellant even before appellant stopped, testified that he did not hear music coming from appellant's motorcycle. Appellant also admitted he violated curfew. He said he had had to go check on a complaint about a member of his work crew, (4) but acknowledged that he was on his way to his girlfriend's house, not his residence, at the time he was stopped. It was "only logical" to go by his girlfriend's residence and pick up a DVD then instead of the next day. He explained that his brake lights flashed, not because he saw the police officer, but because he had just accelerated to "pop a wheelie" going over railroad tracks and was slowing down. Appellant said that he knew what a Pearland police vehicle looked like.

    A member of appellant's motorcycle club, who was familiar with appellant's driving habits, testified that appellant normally observed speed limits, stopped at stop signs, and adhered to other traffic signals when he operated his motorcycle. Several friends testified that he had worked hard at building his business and expressed their favorable opinions about his character.

    Marion Kimbro of the Williamson County Probation Department testified about her interview with appellant and about a supplemental pre-sentence investigation report that was introduced into evidence. Appellant told her that the arresting officer "overreacted." He also said that he had tried to "sell" the officer on the idea of not arresting him. She expressed concern that the level of supervision in Galveston County was too lax; for example, she was concerned that appellant employed members of his sex offenders therapy group in view of the condition of his probation that he not associate with other offenders. In appellant's opinion, the curfew aspect of his probation should be lifted, as well as the sex-offender notification sign on the residence. The report further disclosed that when appellant was a juvenile, he attempted to outrun the police in a motor vehicle in an attempt to avoid a citation for speeding. Finally, she testified that he inappropriately referred to her as "dear" during the interview.

    The burden of proof in a probation revocation is by the preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Willis v. State, 2 S.W.3d 397, 398-99 (Tex. App.--Austin 1999, no pet.). In reviewing a claim of insufficiency of the evidence, the appellate court must determine whether the greater weight of credible evidence before the trial court in the revocation proceeding created a reasonable belief that a condition of probation had been violated as alleged in the motion to revoke. Id. As trier of fact, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.--Austin 2003, no pet.)

    We view the evidence presented in a revocation proceeding in the light most favorable to the trial court's ruling. See Garrett v. State, 619 S.W.2d at 174; Willis v. State, 2 S.W.3d at 398-99. The standard of review of a trial court's determination that a probation violation occurred is abuse of discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

    A person commits the offense of evading detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Pen. Code Ann. § 38.04 (West 2003); see Rodriguez v. State, 578 S.W.2d 419, 419 (Tex. Crim. App. 1979). A peace officer may lawfully detain an individual whom the officer reasonably suspects has operated a motor vehicle at a rate in excess of the posted speed limit. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). The trial court, as the trier of fact in a revocation proceeding, may infer intent on the part of the defendant from the facts and circumstances developed as evidence during the hearing. See Stanfield v. State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986). The intent to flee may be inferred from the actions of the defendant during the pursuit, such as speeding and committing other traffic violations. See Rogers v. State, 832 S.W.2d 442, 443-44 (Tex. App.--Austin 1992, no pet.) (officer in marked car activated overhead lights, motioned driver to stop, driver looked at him and accelerated; during ensuing pursuit radar showed that motorcycle was traveling approximately 95 miles per hour and passed two vehicles in no passing zone before stopping).

    Appellant contends that he was unaware that Weaver was attempting to detain him and so was not intentionally fleeing. (5) However, Weaver testified that, in his experience as a police officer, the flash of brake lights meant that appellant was intentionally braking due to being conscious of a police presence. Appellant then kept traveling well in excess of the speed limit and ran one red light and two stop signs. Weaver was in a marked car, using his lights and siren, and at times was within one hundred feet of the motorcycle. Weaver testified that he would catch up with appellant at intersections, but "lose him on straightaways."

    Appellant provided alternative explanations for his behavior. However, the trial judge determines the credibility of witnesses. See Garrett, 619 S.W.2d at 174. Based on the evidence in front of him, the court could have concluded that appellant had been conscious that he was violating the curfew term of his probation, a term that appellant had decided was inappropriate. (6) Further, appellant was motivated to flee. He had a reason to avoid a traffic ticket. (7) A second motive for fleeing was to avoid documentation in the form of a citation that he was in violation of the terms of his supervision. At the time of the offense, appellant was on his way to his girlfriend's house. He ultimately stopped about a block from her residence. The fact finder could reasonably infer that appellant had attempted to evade Weaver and reach his girlfriend's residence.

    The court had before it evidence that appellant behaved in a way consistent with a person who was aware that a police officer was trying to stop him and fled to avoid apprehension. There was evidence that he committed multiple traffic violations, had reason to flee, had done so before, and had a destination that he was trying to reach. All of this evidence allows an inference that appellant intended to flee from the officer. See Rogers, 832 S.W.2d at 443-44. The police officer initially had a reasonable suspicion that appellant was operating a motor vehicle at an excessive speed based on his radar, thus authorizing the officer lawfully to detain appellant. See Chapnik, 25 S.W.3d at 877. After the chase began, he witnessed more traffic violations. Viewing the evidence in the light most favorable to the ruling, see Garrett, 619 S.W.2d at 174, the greater weight of the evidence the trial court found credible created a reasonable belief that a condition of probation had been violated. See Cobb, 851 S.W.2d at 873.

    Accordingly, we overrule that part of the issue contending that the evidence was insufficient to support the revocation of his probation on the indecency with a child offense and affirm the trial court's judgment.





    David Puryear, Justice

    Before Chief Justice Law, Justices B. A. Smith and Puryear

    Affirmed

    Filed: October 9, 2003

    Do Not Publish

    1. Appellant complains specifically in his motion for rehearing that he intended by his one issue in his brief to address both the sufficiency of the evidence to support the revocation of his probation on the indecency with a child offense and the decision to adjudicate on the sexual assault offense. Accordingly, we address both on rehearing.

    2. Galveston County was providing courtesy supervision for appellant. Appellant lived with his parents in La Marque.

    3. In its brief on appeal, the State concedes the evidence was not sufficient to support the resisting arrest offense.

    4. Appellant owned a business that cleaned up parking lots.

    5. There is no dispute that Weaver was a peace officer.

    6. The pre-sentence report also expressed concern that appellant did not report the arrest to his probation officer because he had decided his arrest did not constitute a violation of the conditions of his probation because he "felt he did nothing wrong." The report continued by expressing concern that appellant held the opinion that he circumstances under which he committed his original offenses could never happen again. The court could have concluded that appellant was very good at rationalizing his behavior and not given credibility to his explanation of events.

    7. A single traffic offense has been held to be adequate to support probation revocation. See Albritton v. State, 680 S.W.2d 80, 81 (Tex. App.--Fort Worth 1984, no pet.).