Kevin Apolinar Johns v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00629-CR
Kevin Apolinar JOHNS,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR2450
Honorable Joey Contreras, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: July 10, 2019
AFFIRMED
After the trial court denied his motion to suppress, Kevin Apolinar Johns pled guilty to
possession of a controlled substance and was sentenced as a repeat offender to fifteen years’
imprisonment. On appeal, Johns asserts the trial court erred by: (1) denying his motion to suppress;
(2) sua sponte questioning the witness at the suppression hearing; and (3) denying his motion for
new trial. We overrule Johns’s issues and affirm the trial court’s judgment.
04-18-00629-CR
BACKGROUND
Deputy Kevin Rasmussen was the only witness to testify at the suppression hearing.
Deputy Rasmussen testified he stopped Johns because the taillights of the rental vehicle he was
driving were not working. Johns told Deputy Rasmussen that he was on probation and might have
outstanding warrants. Deputy Rasmussen asked Johns to exit the vehicle and patted him down for
weapons. Johns then consented to a search of his person. In searching Johns, Deputy Rasmussen
discovered a substance in his pocket which he believed was methamphetamines. After arresting
Johns and placing him in the back of the patrol car, Deputy Rasmussen searched Johns’s vehicle
and discovered more controlled substances in Johns’s wallet and a handgun under the driver’s seat.
As previously noted, Johns pled guilty to possessing a controlled substance after his motion
to suppress was denied. Johns later filed a motion for new trial based on newly discovered
evidence. The trial court denied the motion for new trial after a hearing. Johns appeals.
MOTION TO SUPPRESS
In his first issue, Johns contends the trial court erred in denying his motion to suppress
because Deputy Rasmussen did not have a warrant to search his vehicle and no exception to the
warrant requirement applied. The State responds the search was valid as a search incident to
Johns’s arrest or as an inventory search.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). “Although
we give almost total deference to the trial court’s determination of historical facts, we conduct a
de novo review of the trial court’s application of the law to those facts.” Love v. State, 543 S.W.3d
835, 840 (Tex. Crim. App. 2016) (internal quotation omitted). As an appellate court, we will
affirm the trial court’s ruling if “it is correct under any theory of law applicable to the case, even
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if the trial court did not rely on that theory.” Leming v. State, 493 S.W.3d 552, 562 (Tex. Crim.
App. 2016).
B. Applicable Law
“[O]nce the occupant of a vehicle is lawfully arrested, the Fourth Amendment permits a
warrantless search of the vehicle’s passenger compartment . . . ‘when it is reasonable to believe
that evidence of the offense of arrest might be found in the vehicle.’” State v. Sanchez, 538 S.W.3d
545, 548 (Tex. Crim. App. 2017) (quoting Arizona v. Gant, 556 U.S. 332, 335 (2009)). For
example, when a driver is lawfully arrested for a drug offense, it is reasonable for the arresting
officer “‘to believe that further contraband or similar evidence relevant to the crime for which he
had been arrested might be found in the vehicle from which he had just alighted and which was
still within his vicinity at the time of arrest.’” Id. at 548-59 (quoting Justice Scalia’s concurring
opinion in Thornton v. United States, 541 U.S. 615, 632 (Scalia, J., concurring) and noting Gant
adopted that opinion).
An inventory search is permissible under the state and federal constitutions if it is
conducted pursuant to a lawful impoundment. Benavides v. State, 600 S.W.2d 809, 810 (Tex.
Crim. App. [Panel Op.] 1980). An impoundment is lawful if the driver is removed from his vehicle
and placed under custodial arrest and no other alternatives are available other than impoundment
to ensure the protection of the vehicle. Id. at 811; see also Yaws v. State, 38 S.W.3d 720, 724
(Tex. App.—Texarkana 2001, pet. ref’d) (noting impoundment reasonable when driver is alone
when arrested); Mayberry v. State, 830 S.W.2d 176, 180 (Tex. App.—Dallas 1992, pet. ref’d)
(holding the State met its burden to show that impoundment was lawful when the arrestee was
alone and no one was readily available to take care of the car). An inventory search is not unlawful
simply because it is conducted before the vehicle is actually towed and impounded. Daniels v.
State, 600 S.W.2d 813, 815 (Tex. Crim. App. [Panel Op.] 1980); Jackson v. State, 468 S.W.3d
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189, 195 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The State bears the burden of proving
that an impoundment is lawful and may satisfy its burden by showing that (1) the driver was
arrested, (2) no alternatives other than impoundment were available to ensure the automobile’s
protection, (3) the impounding agency had an inventory policy, and (4) the policy was followed.
State v. Cook, 389 S.W.3d 376, 380 (Tex. App.—Texarkana 2012, no pet.); Garza v. State, 137
S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
C. Analysis
Because Johns was arrested for possession of a controlled substance, it was reasonable for
Deputy Rasmussen “‘to believe that further contraband or similar evidence relevant to the crime
for which [Johns] had been arrested might be found in the vehicle from which he had just alighted
and which was still within his vicinity at the time of arrest.’” Sanchez, 538 S.W.3d at 548 (quoting
Thornton, 541 U.S. at 632 (Scalia, J., concurring)). Therefore, the trial court did not abuse its
discretion in denying the motion to suppress because the search of Johns’s vehicle was permissible
under the search incident to arrest exception to the warrant requirement.
Furthermore, Johns was the only occupant of the vehicle; therefore, no alternatives other
than impoundment were available to ensure the vehicle’s protection. In addition, Deputy
Rasmussen testified he was required to inventory Johns’s vehicle or the tow company would not
pick up the vehicle. Accordingly, the trial court also did not abuse its discretion in denying the
motion to suppress because the search of Johns’s vehicle was permissible under the inventory
exception to the warrant requirement.
Johns’s first issue is overruled.
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QUESTIONING WITNESS
In his second issue, Johns contends the trial court violated his right to a fair trial by
questioning Deputy Rasmussen at the suppression hearing. Johns asserts the trial court assumed
the role of a prosecutor in asking the questions.
A. Preservation
Acknowledging that no objection was made to the trial judge’s questioning of Deputy
Rasmussen, Johns cites Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017), to assert no
objection was required because the questioning was fundamental error. In Proenza, the Texas
Court of Criminal Appeals held claims of improper judicial comments raised under Article 38.05
do not require an objection to preserve the complaint for appellate review. 541 S.W.3d at 801.
Although we believe a distinction exists between a trial judge’s questioning of a witness at a
suppression hearing, and a trial judge’s commenting on the evidence at a jury trial, we will assume
for purposes of this appeal that error was preserved. See Brewer v. State, 572 S.W.2d 719, 721
(Tex. Crim. App. [Panel Op.] 1978) (overruling complaint regarding trial judge’s questioning of
witnesses despite absence of objection but noting conduct of the trial court in questioning
witnesses could only be challenged if conduct was fundamentally erroneous).
B. Standard of Review and Applicable law
“Due process requires a neutral and detached hearing body or officer.” Brumit v. State,
206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A reviewing court presumes the trial court was
neutral and detached absent a clear showing to the contrary. Id. A trial judge is permitted to
question a witness when seeking information to clarify a point or to obtain a clearer idea of the
merits of the case. See Brewer, 572 S.W.2d at 721 (holding questioning by trial court for purpose
of clarifying an issue is permissible); Marshall v. State, 297 S.W.2d 135, 136-37 (Tex. Crim. App.
1956) (holding “court had the right to question the witness in order to obtain a clearer idea of the
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merits of the case” in a case tried without a jury). In bench trials, “a trial judge may question a
witness in order to clarify an issue the trial judge must decide in fulfilling his fact-finding role.”
In re R.P., 37 S.W.3d 76, 79 (Tex. App.—San Antonio 2000, no pet.). However, a trial judge must
avoid becoming involved as an advocate to the extent that he cannot make an objective finding of
fact in the case. Id. “When reviewing complaints about the trial judge’s questioning of a witness,
we apply an abuse of discretion standard.” Badillo v. State, No. 07-07-0081-CR, 2009 WL
425149, at *6 (Tex. App.—Amarillo Feb. 20, 2009, no pet.) (not designated for publication).
C. Analysis
In this case, the questioning occurred during a suppression hearing, so there was no danger
of influencing a jury. In addition, the trial judge’s questions sought to clarify issues relating to
Johns’s verbal consent to search and Deputy Rasmussen’s search of the vehicle, and the trial court
was required to make factual findings regarding these issues in ruling on the motion to suppress.
Finally, the record does not indicate the trial judge abandoned his neutral and detached role.
Accordingly, the trial court did not abuse its discretion in questioning Deputy Rasmussen, and
Johns’s second issue is overruled.
MOTION FOR NEW TRIAL
In his third issue, Johns contends the trial court erred in denying his motion for new trial
based on newly discovered evidence.
A. Standard of Review
“We review a trial court’s denial of a motion for new trial under an abuse of discretion
standard.” McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). “A trial court
abuses its discretion in denying a motion for new trial when no reasonable view of the record could
support the trial court’s ruling.” Id.
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Article 40.001 of the Texas Code of Criminal Procedure provides, “A new trial shall be
granted an accused where material evidence favorable to the accused has been discovered since
trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001. “To obtain relief under this provision, the
defendant must satisfy the following four-prong test: (1) the newly discovered evidence was
unknown or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover
or obtain the new evidence was not due to the defendant’s lack of due diligence; (3) the new
evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result in a new
trial.” State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017).
B. Analysis
Johns’s motion for new trial asserted records from the car rental company from which he
rented the vehicle he was driving the night he was arrested constituted “newly discovered
evidence.” Johns contends the records showed no repairs to the taillights were made after the
rental car was returned which would contradict Deputy Rasmussen’s testimony regarding the
reason for the traffic stop.
Under the first prong of the applicable test, however, no showing was made that the records
were unknown or unavailable to Johns at the time of trial. In fact, Johns’s attorney made reference
to the records as a basis for a verbal motion for continuance at the suppression hearing. Although
Johns’s attorney stated she was recently appointed, the suppression hearing was held two years
after Johns was arrested, and no evidence was presented regarding the reason the records were not
previously obtained. In addition, Johns’s trial attorney testified at the hearing on the motion for
new trial that the records were not necessary, and she only requested the continuance because
Johns insisted the records be obtained. Finally, the trial court noted the records presented at the
hearing were not clear with regard to the issue of whether the taillights were operable when Johns
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was arrested. Although the attorney representing Johns on the motion for new trial sent an email
to the car rental company asking if any repairs were made to the car after it was returned and
received a response that no repairs were made, the trial court questioned whether the car rental
company would consider changing a light bulb in a taillight to be a repair. The trial court also
noted the email could specifically have asked about the taillights rather than asking about repairs.
Given the two-year time period between the day of Johns’s arrest and the suppression hearing, the
availability of the records, and the nature of the records presented at the hearing, we hold the trial
court did not abuse its discretion in denying the motion for new trial because Johns did not satisfy
the applicable four-prong test. Johns’s third issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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