Standefer, Jack Krohn v. State ( 1999 )

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Jack Krohn Standefer appeals his conviction by a jury of the offense of driving while into

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JACK KROHN STANDEFER,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-97-00641-CR

Appeal from the

County Court at Law No. One

of Midland , Texas

(TC# CR67,591)

MEMORANDUM OPINION

Jack Krohn Standefer appeals his conviction by a jury of the offense of driving while intoxicated. The trial court assessed his punishment at two (2) years' community supervision and a fine of $1000. We originally reversed this conviction, sustaining Standefer's first issue, holding that the trial court erred by not permitting Standefer to ask during voir dire whether a potential juror would presume someone guilty if he or she refused a breath test. The Texas Court of Criminal Appeals reversed, holding that the question was an improper commitment question. Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001). The court remanded the case so that we might consider Standefer's other issues. He presents two other issues, whether the trial court improperly refused to grant challenges for cause to three venirepersons because of their stated predisposition to believe police officers more than other witnesses, and whether the trial court improperly denied his requested jury instruction regarding the legality of the stop of his vehicle. We affirm.

Standefer contends in Issues No. Two, Three, and Four that the trial court erred by refusing to grant his challenge for cause regarding veniremembers Steven Rogers, Raymond Sale, and Carol Hawk. During voir dire, Rogers said that he had a disposition to believe a police officer more than someone else. Sale indicated that he thought he would have a predisposition to believe a police officer more than someone else "if he had been trained for such a thing." Hawk stated that she would probably believe a police officer more than somebody else. None of the three was asked whether he or she believed that a police officer always tells the truth.

When a prospective juror is shown to be biased as a matter of law, he or she must be excused when challenged, even if the juror states that he or she can set his or her bias aside and provide a fair trial. Knox v. State, 744 S.W.2d 53, 60 (Tex. Crim. App. 1987). It is left to the discretion of the trial court to first determine whether or not bias exists. Id. The trial court's decision to overrule a challenge for cause must be reviewed in light of all of the answers that the prospective juror gives. Id. Appellate review of voir dire proceedings does not end with a mechanical recitation of a single question and answer. Id.

Rogers, Sale, and several other veniremembers indicated a willingness to trust "our peace officers" out on the road that have had years of experience identifying the intoxicated driver to determine when somebody has had too much to drink. Rogers said, when asked if he presumed the defendant to be "just a little bit guilty" because he had been charged, stated that he did not "figure the police officer is going to waste my time or yours, so there must be something for me to hear. But I'm not making any presumptions." Sale, when asked if he presumed Standefer to be "just a little bit guilty" because he had been charged, replied, "I think if the police picked him up and wrote him a ticket for this, he may have been guilty. But I certainly wouldn't think that until I hear what is going on." Sale indicated that either he or his spouse had contributed to the organization Stop DWI, formerly Mothers Against Drunk Drivers. All three of these challenged voir dire members testified that he or she would keep an open mind until hearing all of the evidence and closing arguments of both sides.

In arguing that the trial court abused its discretion in overruling his challenges for cause, Standefer relies on the case of Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App.1978). We find that case to be distinguishable. In Hernandez, the court held that the trial court improperly overruled a challenge for cause of a veniremember who indicated she believed a police officer would always tell the truth because that belief demonstrated bias against the appellant. Id. at 950. In the case at bar, neither Rogers, Sale, or Hawk indicated a belief that a police officer would always tell the truth.

A veniremember who indicates a tendency to give certain classes of witnesses a slight edge in terms of credibility, but otherwise appears open-minded and persuadable, with no extreme or absolute position regarding the credibility of any witness, is not challengeable for cause. Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999). Rogers, Sale, and Hawk appeared open-minded and persuadable, and had no extreme or absolute position regarding the credibility of any witness. We therefore hold that the trial court did not abuse its discretion in overruling Standefer's challenges for cause as to them. We overrule Issues No. Two, Three, and Four.

Standefer insists in Issue No. Five that the trial court erred by denying his requested jury instruction regarding the legality of the stop of his vehicle. Article 38.23(a) of the Texas Code of Criminal Procedure prohibits the introduction of illegally obtained evidence. It further provides for a jury instruction to disregard the evidence if the jury believes, or has a reasonable doubt, that the evidence was illegally obtained, provided that the legal evidence "raises an issue hereunder." Tex. Code Crim. Proc. Ann. 38.23(a) (Vernon 1979).

An officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the defendant with the unusual activity, and some indication that the activity is related to crime. Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986). The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless arrest or search. Id. If the evidence raises a fact issue as to whether the officers had a reasonable suspicion to stop Standefer, then he was entitled to have the jury charged as required by Article 38.23.

Bill Anderson, a deputy sheriff for Midland County, testified that he observed Standefer's vehicle staying close to the right shoulder stripe, weaving back to the center of the lane, and then back close to the shoulder stripe. He said he twice observed Standefer cross onto the shoulder stripe. He indicated that this was not a normal way of driving, and that there was nothing in the weather or road conditions that might have caused it. He said nothing about Standefer crossing the shoulder stripe or weaving outside his lane of traffic. Standefer testified that he had been hugging the right shoulder for about the last twenty-two years and that he did not recall crossing the shoulder stripe. He did not deny weaving within his lane as described by the officer, or deny driving on the shoulder stripe.

Inasmuch as the evidence concerning the nature of Standefer's driving that formed the basis for the stop was undisputed, it did not create a fact issue for the jury to resolve. Consequently, the trial court did not err in denying Standefer's requested instruction. See Jordan v. State, 562 S.W.2d 472, 473 (Tex. Crim. App. 1978); Campbell v. State, 492 S.W.2d 956, 958 (Tex. Crim. App. 1973). Standefer relies on the opinions in Stone, 703 S.W.2d at 652; Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App. 1993); Jacobs v. State, 734 S.W.2d 704 (Tex. App.--Dallas 1987, pet. ref'd); Simmons v. State, 741 S.W.2d 595 (Tex. App.--Dallas 1987, pet. ref'd); and Espericueta v. State, 838 S.W.2d 880 (Tex. App.--Corpus Christi 1992, no pet.). We find all of these cases to be distinguishable because in each there was conflicting testimony concerning the circumstances of the stop of the defendant's vehicle. Reynolds, 848 S.W.2d at 149; Stone, 703 S.W.2d at 655; Jacobs, 734 S.W.2d at 705; Simmons, 741 S.W.2d at 696; Espericueta, 838 S.W.2d at 883. In the case at bar, Deputy Anderson's testimony that Standefer was weaving within his own lane and driving on the shoulder stripe was uncontroverted. We overrule Issue No. Five.