Matthew Clark Taylor v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00033-CR

______________________________

MATTHEW CLARK TAYLOR, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 7th Judicial District Court

Smith County, Texas

Trial Court No. 007-2049-03

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            After hearing what Matthew Clark Taylor asserts was hearsay evidence, a jury found Taylor guilty  of  the  offense  of  failing  to  register  as  a  sex  offender.  See  Tex.  Code  Crim.  Proc. Ann. art. 62.051 (Vernon Supp. 2005). The trial court set Taylor's punishment at ten years' imprisonment. On appeal, Taylor contends the trial court erred by admitting hearsay into evidence, thereby denying Taylor the right to confront and cross-examine the purported declarant, in violation of Crawford v. Washington, 541 U.S. 36 (2004). The State asserts Taylor did not preserve this issue for appellate review. We affirm the trial court's judgment because Taylor's trial objection was not sufficiently specific to preserve a Confrontation Clause error.

            Taylor made the following objection before the trial court:

            Your Honor, I do have one matter. I understand that the only State's witness that's a civilian is not actually under subpoena. It's my understanding, from looking at the discovery, that she's the only one with personal knowledge of anything about this case.

 

            So I know what's going to be coming up is going to be a lot of hearsay objections, so I would like an oral motion in limine so that the State not go into anything about what this Tracy Santana may have said to a police officer during their opening statements, since that will probably not be allowed during the trial.

 

            Also, that they not ask any type of questions that would lead to a hearsay response from the officer.

 

(Emphasis added.) Thus, it appeared that Taylor's objection was initially based strictly on our rule of evidence prohibiting hearsay. See Tex. R. Evid. 802. Later, continuing to argue the same objection, Taylor told the trial court:

            And I just cannot imagine any way the State can get around this as being hearsay. It comes straight from -- at least the discovery says straight from my client's mother that says, "He has not lived here in three or four months; he's living with his sister," and gives an address. I just cannot imagine how that cannot be hearsay.

 

            . . . .

 

            I believe we had something very similar to this last week in the trial that I had in here where the witness was not subpoenaed, and the witness that was not subpoenaed was not -- the officer was not allowed to repeat anything that the witness said.

 

            We even tried the excited utterance and the presen[t sense impression], and, of course, that's not part of this. But that officer was not allowed to go into anything that that person said.

 

(Emphasis added.) The court, the prosecutor, and defense counsel continue discussing the issue for another seven pages of the reporter's record—chiefly over whether the testimony sought to be solicited by the State would truly be offered for the truth of the matter asserted—before defense counsel finally stated:

And you say how could -- how could the State ever prove the case? Well, by bringing in the person so that we have the right to confront them and to cross-examine them.

 

And that's the reason that hearsay is not allowed, because if hearsay was allowed in all these cases, you wouldn't need a defense attorney because there would be no one -- you couldn't test their knowledge. There wouldn't be anybody here. There would only be police officers here every trial. And that's what it looks like it's going to be in this trial.

            To preserve a complaint for appellate review, the party must state the grounds for the desired ruling from the trial court "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context . . . ." Tex. R. App. P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). This is to give the trial court an opportunity to rule on the appellant's appellate rationale. Reyna, 168 S.W.3d at 178 (citing Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)). It is also to give the trial court the opportunity to correct the error or remove the basis for the objection. Reyna, 168 S.W.3d at 179 (citing Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000)). When a single objection "encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error." Reyna, 168 S.W.3d at 179 (citing Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997)). When an objection is based on hearsay, that objection does not preserve a Clause error. Reyna, 168 S.W.3d at 179 (citing Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)). Based on these authorities, we believe no Confrontation Clause error was preserved.

            As in Reyna, Taylor's arguments to the trial court addressed a traditional hearsay objection under our rules of evidence. Arguably, but only tangentially, while arguing his hearsay objection, Taylor briefly touched on a claim that the evidence's admission violated the Confrontation Clause. Under the precedent set forth by the Texas Court of Criminal Appeals in Reyna, because Taylor's objection involved, at most, a hybrid argument raising complaints under both federal and state rules, we hold this issue has not been preserved for our review. And, given the many pages of discussion concerning Taylor's sole objection, the constant focus of that discussion on hearsay, and the extremely brief, tangential reference to confrontation embedded in the extensive hearsay discussion, we believe the trial court was not given any real opportunity to rule on the admissibility of evidence based on the Confrontation Clause. Accordingly, we overrule Taylor's sole point of error.

            We affirm the trial court's judgment.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 6, 2006

Date Decided:             January 13, 2006

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-09-00238-CR

                                                ______________________________

 

 

                                 WILLIAM BARRY TRAVIS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                            On Appeal from the County Court at Law

                                                          Cherokee County, Texas

                                                            Trial Court No. 48393

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                    Opinion by Chief Justice Morriss

                                                                   O P I N I O N

 

            The small white pickup truck driven by William Barry Travis in Cherokee County^[1] was not seen violating any traffic law or exhibiting any signs that the driver was intoxicated or otherwise in distress, when Officer Matthew Poole saw, followed, and ultimately stopped it. Poole was acting on an earlier telephoned report that Travis had been intoxicated when he assaulted his brother and left the scene driving a small, white pickup truck.  As a result of the stop, Poole discovered evidence suggesting that, in fact, Travis was intoxicated.

            Travis argued to the trial court that the stop was improper and that, therefore, the evidence should be suppressed.  After the trial court overruled Travis’ motion to suppress the evidence, Travis was convicted of DWI and sentenced to 180 days’ confinement and a $2,000.00 fine.  On appeal, Travis continues his argument.  Because we agree, we reverse the judgment and remand this case to the trial court for further proceedings consistent with this opinion.

            Poole received a call from Travis’ brother “claiming that he had assaulted him . . . [and] that [Travis] had left the scene and was intoxicated.”  Travis’ brother did not want to press charges, and no warrant was obtained. Poole was patrolling one or two hours later when he heard that “an elderly subject,^[2] [was] possibly passed out behind the wheel of” a “small white pickup.”  Poole was dispatched to Farm-to-Market 344 and 346 “as a welfare concern.”  Because Travis’ brother said Travis left in “his white, Chevrolet S-10 pickup,” Poole thought the welfare concern could be a “10-56,” that is, a possible intoxication case. 

            While he was in route to his dispatch destination, Poole was passed by a white Chevrolet S-10 pickup.  He turned around “and pursued it, to see—you know, to investigate further whether it would be the vehicle I was looking for.”  Poole did not see any sign of distress from the driver and did not believe him to be a danger to himself or others.  Travis violated no speeding or other traffic law. Poole testified he had no articulable facts to lead him to stop the car based on a reasonable suspicion of DWI. Nevertheless, Poole continued to follow Travis and ran a records check on the vehicle registration.  Poole concluded “that this was going to be the person related to the disturbance earlier in the day,” and believed “it was apparent that this was going to be probably the vehicle that I was in route to check on.”  Thus, he signaled for Travis to pull over.

            Travis sought to suppress Poole’s testimony that Travis smelled of alcohol, had glassy, bloodshot eyes, was harboring a Natural Light on his vehicle floorboard, and admitted to drinking four or more beers.^[3]  The trial court found that Poole did not have reasonable suspicion to stop Travis for DWI, and this finding is not disputed by any party.^[4]  The issue on appeal is whether the trial court erred in impliedly finding that the community caretaker exception applied to justify the traffic stop.^[5]  We hold that the caretaker exception did not apply.

            In reviewing a trial court’s ruling on a motion to suppress, we give almost total deference to the trial court’s determination of historical facts and review de novo any questions of law concerning the search and seizure.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We will sustain the admission of the evidence if admission is reasonably supported by the record and correct on any theory of law applicable to the case.  Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

            The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV.  This prohibition extends to “brief investigatory stops such as the stop of [a] vehicle.” United States v. Cortez, 449 U.S. 411, 417 (1981); see Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).  Such a stop must be objectively reasonable in light of the particular circumstances of the case.  Maryland v. Wilson, 519 U.S. 408, 411 (1997); Terry v. Ohio, 392 U.S. 1, 21–22 (1968); Corbin, 85 S.W.3d at 276.  Reasonableness depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement.” Corbin, 85 S.W.3d at 276 (quoting Wilson, 519 U.S. at 411).  A seizure based on reasonable suspicion will generally be reasonable; however, the trial court explicitly ruled that Poole did not have reasonable suspicion to stop Travis.^[6]  Id.

            In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed.  Id. (citing Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App. 1999); see Cady v. Dombrowski, 413 U.S. 433, 441 (1973). As part of an officer’s duty to “serve and protect,” an officer “may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.”  Id. (citing Wright, 7 S.W.3d at 151); Bilyeu v. State, 136 S.W.3d 691, 698 (Tex. App.—Texarkana 2004, no pet.). This exception to the warrant requirement has “narrow applicability.”  Laney, 117 S.W.3d at 859.

            The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement.  Corbin, 85 S.W.3d at 276.  The record reflects that Poole stopped Travis “to check the welfare of the driver” based on a possible “medical or intoxication” problem. The trial court, as the exclusive judge of credibility and the fact-finder, could have concluded Poole was primarily motivated by community caretaking concerns.  Id. at 277.  Given that determination, we examine whether Poole’s belief that Travis needed help is reasonable by looking at four factors:

(1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

 

Id. (quoting Wright, 7 S.W.3d at 151–52).

 

            Since “the purpose of the community caretaking exception is to allow an officer to “seize” and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight.”  Id.  In this case, this factor undeniably weighs against admission since Poole testified Travis did not appear to be in distress.  See id. at 277–78.  Although there is record evidence that Travis was driving on a county road suggesting isolation, he may have been close to an intersection.  It is the State’s burden to demonstrate the reasonableness of the stop.  State v. Dixon, 151 S.W.3d 271, 273 (Tex. App.—Texarkana 2004), aff’d, 206 S.W.3d 587 (Tex. Crim. App. 2006).  We find this factor to be neutral.  See Corbin, 85 S.W.3d at 278.  Poole testified Travis was alone, indicating that he did not have access to assistance.  However, because Travis was not distressed, there is not much weight to this factor.  In regard to the fourth factor, Poole testified he had no reason to believe Travis was a danger to himself or others. Nevertheless, Poole stopped Travis “to check his current state, his welfare, to make sure he is okay.”  While the trial court was free to consider Poole’s subjective concern, we find Poole’s belief that Travis required aid objectively unreasonable.  Therefore, the narrow community caretaker exception did not justify Poole’s stop.  Thus, Travis’ Fourth Amendment rights were violated.

            Having found constitutional error, we must conduct a harm analysis to determine whether it calls for reversal of the judgment.  Tex. R. App. P. 44.2.  To determine whether prejudice occurred by the introduction of improperly admitted evidence at trial, we evaluate the entire record in a neutral manner, and must reverse unless we determine “beyond a reasonable doubt that error did not contribute to the conviction or punishment.”  Id.  Here, the only evidence that Poole was DWI came from Poole’s testimony of events occurring after the traffic stop.  Without the evidence which should have been suppressed, nothing in the record would prove Travis drove while legally intoxicated.  After carefully reviewing the record and performing the required harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure, we are unable to determine beyond a reasonable doubt that the trial court’s denial of Travis’ motion to suppress did not contribute to his conviction or punishment.  Accordingly, we sustain Travis’ first point of error.

            We reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

 

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          July 19, 2010

Date Decided:             August 5, 2010

 

Publish

 

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[2]The record lists Travis’ birthdate as August 12, 1951, making him fifty-six years old at the time of the offense.  While admittedly age categorizations can depend on one’s perspective, we doubt the reference to an “elderly subject” referred to Travis.

^[3]Travis contends that the evidence would be legally and factually insufficient for a jury to render a verdict of guilt if this evidence was suppressed.  However, in reviewing legal and factual sufficiency, we consider all of the evidence, whether improperly admitted or not.  Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).  From the record, it is clear that a rational jury, as a finder of fact, could have found beyond a reasonable doubt the essential elements of DWI and that the verdict was not manifestly unjust, shocking to the conscience, or demonstrative of bias.  See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

 

^[4]As finder of fact, the trial court was free to disbelieve Poole’s testimony of statements made by Travis’ brother.

 

^[5]There is no ruling on the record regarding the community caretaker exception.  However, because evidence subject to the motion to suppress was admitted in front of the jury, we conclude that the trial court impliedly ruled the community caretaker exception applied.

^[6]Poole explained that he did not have any articulable facts that would lead to a reasonable suspicion that Travis was DWI, that he did not pull Travis over in suspicion of DWI, and that no traffic laws were violated.