Brandon Sheehan v. State ( 2009 )

NO. 07-08-0417-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 16, 2009 ______________________________

BRANDON J. SHEEHAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

NO. 2007-445,482; HONORABLE L. B. "RUSTY" LADD, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Brandon J. Sheehan, was convicted of driving while intoxicated and sentenced to 14 days in the Lubbock County Jail. Via three issues, appellant contends that the trial court erred in overruling his motion to suppress the evidence used to convict him. We reverse.

Factual and Procedural Background

On June 15, 2007, at 1:00 a.m., Officer David Savell of the Lubbock Police Department observed appellant pulling out of the parking lot of O'Tool's Plastic Pipe in the City of Lubbock. Appellant was driving a Chevrolet pick-up truck and was pulling a flatbed trailer. Upon observing appellant coming from the parking lot, Savell turned on his emergency lights and pulled appellant over. After ascertaining that the trailer was not stolen and running a driver's license check on appellant, Savell determined that appellant was intoxicated and arrested appellant for driving while intoxicated.

Prior to trial, appellant filed a motion to suppress the evidence contending that the arrest of appellant was without a lawful warrant, probable cause, or other lawful authority. The trial court held a hearing on July 8, 2008, on appellant's motion to suppress. At the beginning of the hearing, the parties agreed that the stop was without a warrant and the issue before the trial court was whether or not Savell had reasonable suspicion to stop appellant.

Savell testified that he had been on the police force for 21 years. At the time of the stop he observed appellant exiting the parking lot of O'Tool's Plastic Pipe at 1:00 in the morning and knew that the business was not open at that time. Further, he observed appellant pulling a flatbed trailer and he had received briefings at roll call, sometime within the previous day or two, that there had been a number of flatbed trailers stolen in Lubbock. Savell testified that he decided to stop appellant and "find out, make sure it was his trailer and he wasn't up to no good." Based upon this information, Savell decided to stop appellant and determine if the flatbed trailer he was pulling had been stolen. During examination by the State, Savell testified that he did not know if O'Tool's had a flatbed trailer parked on its lot. The trial court overruled the motion to suppress and the case proceeded to trial. The trial court did not file any findings of fact or conclusions of law regarding his ruling on the motion to suppress.

Standard of Review

We review a trial court's decision to deny a motion to suppress under an abuse of discretion standard. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). A bifurcated standard of review is applied, that is, when a trial court's determination of fact is based upon an evaluation of witness credibility or demeanor, almost total deference is given to that determination. See St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). However, on questions of mixed law and fact that do not turn on the trial court's evaluation of witness credibility and demeanor, we conduct a de novo review. See Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App. 2006). Where, as here, there are no findings of fact filed, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that are supported by the record. See Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005).

Finally, the legal question of whether the totality of the circumstances are sufficient to support an officer's reasonable suspicion is reviewed de novo. See Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App. 2007). In reviewing the totality of the circumstances, we must ascertain from the record if there was reasonable suspicion to believe that appellant is violating the law. See Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App. 2008). 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, or soon will be, engaged in criminal activity. Id.

Analysis

A review of the record reveals that Savell's articulable facts were: 1) the time of day, 1:00 a.m.; 2) the business was not open; and 3) information given at roll call regarding the rash of stolen flatbed trailers. Of these facts, only the time of day and the fact that appellant was pulling a flatbed trailer link appellant to a conclusion that he had or was going to be involved in criminal activity. This court has previously held that the time of day and the level of criminal activity in an area may be factors in making a reasonable suspicion determination, but they are not suspicious in and of themselves. See Hudson v. State, 247 S.W.3d 780, 786 (Tex.App.-Amarillo 2008, no pet.). However, the State argues that in addition to these articulated reasons for the stop we must consider the trial court's implied finding that O'Tool's was a place where items might be stored outside and subject to theft. We are required to consider implied findings by the court, if those findings are supported by the record. Ford, 158 S.W.3d at 493. However, in the record before us, we find no support for this implied finding. The owner of O'Tool's testified but nowhere in the record does he state that there is merchandise stored on the parking lot appellant was seen leaving. Further, nowhere in Savell's testimony does he state that he had knowledge of any merchandise that might be readily accessible to one trying to steal it. Finally, the testimony of the owner of O'Tool's was that the lot in question did not have a gated entry nor a fence of any type around it. It was simply a vacant parking lot, according to the record.

In the final analysis, the facts articulated by Savell fail to provide this court with reasonable belief that some conduct out of the ordinary related to criminal activity is, has, or was about to occur. See Neal, 256 S.W.3d at 280. Accordingly, we find that the stop of appellant was without reasonable suspicion to condone it. We therefore sustain appellant's contention that the trial court abused its discretion in overruling appellant's motion to suppress.

Conclusion

Having sustained appellant's sole issue, the judgment of the trial court is reversed and the cause is remanded for further proceedings in conformity with this opinion.

Mackey K. Hancock

Justice

Do not publish.

at 921-22.

In contrast, the question in this case was much less specific, did not ask the panel about their ability to reach a particular verdict, and therefore did not have any tendency to commit the panel to any particular finding. As did the questions in Maddux and Nunfio, appellant's question merely sought to determine if the members of the venire had any bias or prejudice in favor of the victim, and did not ask if the venire members were able or willing to make any particular findings despite the victim's age. In Maddux, the Court of Criminal Appeals specifically rejected the State's argument that a question concerning the effect of the victim's age on venire members was an attempt to commit them to particular findings. 862 S.W.2d at 592. The question before that court and the one before us is analogous and its reasoning is applicable here.

In arguing the question was improper, the State places significant reliance upon the statement in Bailey that "the question presents the venire with specific facts, the name and age of the victim." While it is true that questions with greater factual detail are more likely to be improper, that tendency does not arise from the factual specificity per se. It arises because such questions may tend to commit venire members to a particular verdict on the facts of the case they are about to hear, as contrasted to a mere recital of a fact or facts involved in the case. It is because of this confusion that Judge Baird, in his concurring opinion in Raby, opined that fact specific questions were not prohibited per se.

In considering the State's argument that the defense question was improper because it mentioned the name of the victim, we note the holding in Etheridge v. State, 903 S.W.2d 1 (Tex. Crim.App. 1994), cert. denied, 516 U.S. 920, 116 S. Ct. 314, 133 L. Ed. 2d 217 (1995). In that case, the court held that the trial court did not err in allowing the prosecution to use a chart during voir dire showing the victim's name. Id. at 8. We do not believe that the use of the victim's age directly, rather than stated as a part of a hypothetical question, carried any taint. This is particularly true here when the victim's age was not a contested issue and one of the significant issues during voir dire was whether the members of the venire were influenced by the substantial pretrial publicity given to the case. ⁽¹⁾ Suffice it to say that we find the question sought by appellant was proper and the trial court erred in overruling it. Having made that decision, we must next decide if the question's exclusion mandates reversal.

In Nunfio, the Court of Criminal Appeals held the denial of a proper question during voir dire was not subject to harmless error analysis. However, in Cain v. State, 947 S.W.2d 262 (Tex.Crim. App. 1997), the court held that except for certain constitutional errors "no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Id. at 264. In doing so, however, the court noted that some errors might defy analysis by harmless error standards or there might be insufficient information upon which to conduct a meaningful harmless error analysis. Id. Indeed, while recognizing that some kinds of errors would never be harmless under the applicable test, the court cautioned that appellate courts should not automatically foreclose the application of the harmless error to certain categories. Id. For example, in Cena v. State, 991 S.W.2d 283 (Tex.Crim.App. 1999), and Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999), both of which involved error in limiting voir dire questions, the court vacated judgments of the Courts of Appeals and remanded causes to them for the purpose of conducting harmless error analyses.

Rule 44.2 of the Texas Rules of Appellate Procedure sets out the standard by which we determine if trial error requires reversal. It sets out two tests which depend on the type of error committed. For constitutional error which is subject to harmless error review, an appellate court must reverse "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex. R. App. P. 44.2(a). For other types of errors reversal is not required if the error does not "affect substantial rights." Tex. R. App. P. 44.2(b).

The right to assistance of counsel and to trial by an impartial jury is guaranteed by the Sixth Amendment to the Federal Constitution, made applicable to the states by the Fourteenth Amendment. A like guarantee is provided by the Texas Constitution in Article 1, Section 10 of that document. In Linnell v. State, 935 S.W.2d 426, 428 (Tex.Crim.App. 1996), the court held that the right to the assistance of counsel encompasses the right of counsel to question the members of the jury panel in order to intelligently exercise peremptory challenges. See also Shipley v. State, 790 S.W.2d 604, 607-08 (Tex.Crim.App. 1990); S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.--Houston [14th Dist.] 1996, pet. denied). Thus, because appellant's complaint implicates his constitutional right to an impartial jury, we must reverse unless we can determine beyond a reasonable doubt that the error did not contribute to his conviction or punishment.

In contending that the "substantial right" test rather than the constitutional error test is applicable, the State cites and relies upon Jones v. State, 982 S.W.2d 386 (Tex.Crim.App. 1998). However, that case involved trial court error in sustaining the State's challenge based upon a provision of the Code of Criminal Procedure. Because the error was premised on misapplication of a statute, the court characterized it as non-constitutional error. Id. at 391. It went on to hold that as long as the members of the resulting jury are impartial and otherwise qualified, the exclusion of another qualified panel member did not affect a substantial right of the defendant. Id. at 393-94.

In this case, unlike Jones, the asserted error does not involve the mere violation of a statute, but goes to appellant's right to a fair and impartial jury and the effective assistance of counsel. Because counsel was not able to inquire into the venire's potential bias on matters relevant to the case, we cannot know if the members of the selected jury were impartial. Indeed, in the recent decision of Gonzales v. State, No. 06-97-0121-CR (Tex.App.--Texarkana Aug. 31, 1999, no pet. h.), our sister court considered the effect of the denial of proper voir dire questions. It observed:

When an error occurs in the questioning that resulted in the selection of the jury, there is a probability that the error will skew every act taken by counsel in connection with the denied questions because counsel has been improperly denied the right to have any insight into the juror's reaction to that area.

Because it felt it was impossible to determine how the denial of proper questions affected trial counsel's ability to select an impartial jury and his presentation of his case, the Gonzales court held the error was of constitutional dimension and was not harmless.

Rule 44.2(a) does not permit us to find an error harmless based upon our speculation or conjecture. There is nothing in this record to support a conclusion that, beyond a reasonable doubt, the limitation on appellant's ability to question the jury did not contribute to his conviction or sentence. That being true, we sustain appellant's first point. Because that action requires the reversal of the judgment of the trial court and the remand of the cause for retrial, it is not necessary to discuss the remainder of appellant's points.

Accordingly, the judgment of the trial court is reversed and the cause remanded for retrial.

John T. Boyd

Chief Justice

Do not publish.

1. We also note that the State questioned the venire members if they were able to give a defendant who "might be 17" a life sentence. It would appear that this question had a greater tendency to commit the venire to a particular question than that which the defense sought to ask.