William Dale Calhoun, Jr. v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00323-CR
WILLIAM DALE CALHOUN, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
TRIAL COURT NO. 10566
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant William Dale Calhoun, Jr., appeals his conviction for possession
of less than one gram of methamphetamine. In two issues, Calhoun argues that
the trial court erred by overruling his motion to suppress and by allowing the
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See Tex. R. App. P. 47.4.
prosecutor to make several comments to the venirepanel during voir dire. We
will affirm.
II. BACKGROUND
Because this appeal pertains to issues regarding pretrial procedures, we
detail only the facts pertinent to the substance of those issues. Following a traffic
stop, police officers found less than one gram of methamphetamine on the seat
of Calhoun’s truck. Prior to trial, Calhoun filed a motion seeking to suppress,
among other things, the methamphetamine. In his motion and at the suppression
hearing, Calhoun asserted that the officer who stopped him lacked a specific,
articulable reason to do so.
At the suppression hearing, City of Graham Police Officer Devin Wright
testified that during the day on September 1, 2014, his attention was drawn to
Calhoun’s truck because “the state inspection sticker was obscured by mud.”
Wright averred that the windshield of Calhoun’s truck was approximately six to
seven feet away from him when he made this observation. Wright said that he
immediately initiated a traffic stop.
After making contact with Calhoun, Wright inquired about the truck’s
inspection sticker. According to Wright, Calhoun stated that he had covered the
inspection sticker with mud and that the inspection sticker was expired. By
Wright’s account, there was no mud on the windshield “other than what was
covering the inspection sticker.” Wright also said that there was no mud on any
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other outside area of the truck. Wright testified that “pretty quick into the traffic
stop,” Calhoun reached out and wiped the mud from the windshield.
During cross-examination, the defense introduced a still picture captured
from video retrieved from Wright’s body camera. In the picture, there appears to
be some mud obscuring the inspection sticker; however, the month and year are
clearly visible. Wright testified that this picture was taken several minutes after
the traffic stop, well after the time that Calhoun had wiped some of the mud from
the windshield and after Calhoun had been removed from the truck. Although
Wright initially testified that Calhoun’s arm could be seen in the picture, he later
testified that he was mistaken about whose arm was visible in the picture and
that given the time the picture was taken, the arm in the picture would have to
have been his own.
Following the suppression hearing, the trial court denied Calhoun’s motion.
After a jury found Calhoun guilty of possession of less than one gram of
methamphetamine, the jury assessed punishment at two years’ confinement.
The trial court entered judgment accordingly and this appeal followed.
III. DISCUSSION
A. A Lawful Traffic Stop
In his second issue, Calhoun argues that the trial court erred by overruling
his suppression motion. Specifically, Calhoun argues that the State failed to
carry its burden at the suppression hearing of demonstrating that Wright
possessed a reasonable suspicion that justified him stopping Calhoun’s vehicle.
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The gist of Calhoun’s argument seems to be twofold. First, Calhoun appears to
argue that Wright’s testimony regarding whether Calhoun’s inspection sticker
was obscured is not credible. Second, Calhoun seems to argue that the statute
which required Calhoun to display an inspection sticker did not require that the
inspection sticker be valid or current.
Based on the applicable caselaw, we conclude that the trial court had
before it sufficient evidence to support its implied finding that Wright possessed a
reasonable suspicion to initiate a traffic stop of Calhoun’s vehicle.
1. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
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of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 818.
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable
to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then
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review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
2. Wright Lawfully Stopped Calhoun
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. To suppress evidence because of an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young
v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093
(2009). A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant
has made this showing, the burden of proof shifts to the State, which is then
required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
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An officer may stop and detain a driver, rather than arrest the driver, on
reasonable suspicion of criminal activity. Tex. Dep’t of Public Safety v.
Gilfeather, 293 S.W.3d 875, 879–80 (Tex. App.—Fort Worth 2009, no pet.)
(en banc op. on reh’g) (holding that an officer’s stop of a car was justified
because the officer reasonably suspected the offense of speeding); Fowler v.
State, 266 S.W.3d 498, 502 (Tex. App.—Fort Worth 2008, pet. ref’d) (en banc);
see Terry v. Ohio, 392 U.S. 1, 20–22, 88 S. Ct. 1868, 1879–80 (1968);
Carmouche v. State, 10 S.W.3d 323, 328–29 (Tex. Crim. App. 2000).
Reasonable suspicion exists when, based on the totality of the circumstances,
the officer has specific, articulable facts that when combined with rational
inferences from those facts, would lead him to reasonably conclude that a
particular person is, has been, or soon will be engaged in criminal activity. Ford
v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). To these ends, an officer
may properly stop and detain an individual to investigate a possible inspection
sticker violation when the officer observes some irregularity about the sticker.
Evers v. State, 576 S.W.2d 46, 49 n.3 (Tex. Crim. App. [Panel Op.] 1979); see
Mills v. State, Nos. C14-87-00843-CR, 14-87-00844-CR, 1989 WL 1198, at *1–2
(Tex. App.—Houston [14th Dist.] Jan. 12, 1989, no pet.) (not designated for
publication) (reasoning that officer was justified in initiating traffic stop because
there appeared to be “something wrong with” or “fictitious” about the vehicle’s
inspection sticker).
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In this case, Wright testified that he initiated a traffic stop of Calhoun’s
vehicle because mud obscured the truck’s inspection sticker. Wright further
averred that except for the mud that was covering the inspection sticker, neither
the remainder of the windshield nor any other outside area of the truck had mud
on it. The reasonable inference from this testimony is that Wright believed that
Calhoun had purposely covered the inspection sticker to obscure the fact that the
inspection sticker had expired. Wright’s reasonable suspicion was confirmed
when Calhoun explained to Wright that he had purposely covered the portion of
the windshield where the inspection sticker was because it was expired.
Calhoun seems to argue that Wright’s testimony is not credible because
Wright initially testified that it was Calhoun’s arm that was visible in the picture
taken from Wright’s body camera, but he later “was forced to admit” that it was
Wright’s arm. But our review of the record does not reveal any underhanded
intent on the part of Wright. Furthermore, it is the province of the trial court to
make credibility and demeanor determinations regarding a witness. Wiede, 214
S.W.3d at 24–25.
Calhoun also seems to argue that under the applicable statute, Wright was
not justified in stopping Calhoun once Wright had determined that Calhoun’s
truck had an inspection sticker and that it was not relevant that the sticker was
obscured, expired, or invalid. See Tex. Trans. Code Ann. § 548.602 (West
2011). Calhoun interprets the statute to mean that Wright could have only
stopped Calhoun if the truck had no inspection sticker at all.
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Calhoun does not point to any caselaw to support his contention, and we
have found no such caselaw as well. But numerous cases stand for the
proposition that officers are justified in initiating a traffic stop when an inspection
sticker is expired, invalid, or otherwise irregular. See, e.g., Myers v. State, 203
S.W.3d 873, 880 (Tex. App.—Eastland 2006, pet ref’d).
We hold that when viewing the evidence in the light most favorable to the
trial court’s ruling, the trial court did not err by concluding that Wright possessed
a reasonable suspicion to stop and detain Calhoun. Wiede, 214 S.W.3d at 24–
25. We overrule Calhoun’s second issue.
B. Complaint Against Prosecutor’s Comments is Not Reviewable
In his first issue, Calhoun argues that the trial court erred by allowing the
prosecutor to make a series of hypothetical statements about methamphetamine
and possession of controlled substances during voir dire. The State responds
that Calhoun did not object to these statements when they were made and thus
failed to preserve his complaint for our review. We agree with the State.
To preserve error regarding improper voir dire questions or statements, a
party must make a specific and timely objection. Turner v. State, 805 S.W.2d
423, 431 (Tex. Crim. App.), cert. denied, 502 U.S. 870 (1991); Montgomery v.
State, 198 S.W.3d 67, 74 (Tex. App.—Fort Worth 2006, pet. ref’d).
Here, Calhoun did not object to the prosecutor’s statements that he now
complains of on appeal. Thus, he forfeited our review of these statements. See
Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.—Houston [1st Dist.] 1994, no
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pet.), cert. denied, 516 U.S. 1080 (1996) (“Having failed to object to the
prosecutor’s statement during voir dire, appellant has preserved nothing for
review.”). We overrule Calhoun’s first issue.
IV. CONCLUSION
Having overruled both of Calhoun’s issues on appeal, we affirm the trial
court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 23, 2016
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