Paula Faye Walker v. Tony Leo Walker ( 2004 )

Paula Faye Walker v. Tony Leo Walker

  IN THE

TENTH COURT OF APPEALS

No. 10-03-336-CV

     PAULA FAYE WALKER,

                                                                              Appellant

     v.

     TONY LEO WALKER,

                                                                              Appellee

From the 296th District Court

Collin County, Texas

Trial Court # 296-50040-03

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      Paula Faye Walker appeals a divorce decree. However, she did not serve a copy of her notice of appeal on Appellee. The Clerk of this Court notified Walker by letter dated November 6, 2003 that the appeal may be dismissed for failure to comply with the requirements of the Rules of Appellate Procedure if the notice of appeal was not served on Appellee and proof of service filed with the Court within 10 days. See Tex. R. App. P. 42.3(a). Walker has not responded to this notice. Accordingly, the appeal is dismissed.

                                                                   PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Appeal dismissed

Opinion delivered and filed January 28, 2004

[CV06]

35 (Tex. Crim. App. 2000).  In “brief investigatory stops of persons or vehicles that fall short of traditional arrest,” “the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’”  United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)); accord Terry v. Ohio, 392 U.S. 1, 9 (1968); Balentine, 71 S.W.3d at 768. 

      “[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”  Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); accord Laney v. State, 117 S.W.3d 854, 864 (Tex. Crim. App. 2003); see Georgia v. Randolph, 126 S. Ct. 1515, 1522 (2006).  “[T]he State must prove the voluntariness of a consent to search by clear and convincing evidence.”  State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997); accord Paprskar v. State, 484 S.W.2d 737, 737 (Tex. Crim. App. 1972); see Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).  “In Texas, at least since Schneckloth v. Bustamonte, . . . the ‘totality of the circumstances’ voluntariness test has been generally employed.”  Juarez v. State, 758 S.W.2d 772, 776 (Tex. Crim. App. 1988) (citing Schneckloth, 412 U.S. 218).

The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object.  The standard for measuring the scope of consent is that of “objective” reasonableness—what the typical reasonable person would have understood by the exchange between the officer and the individual.

Vargas v. State, 18 S.W.3d 247, 253 (Tex. App.—Waco 2000, pet. ref’d) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991) & Harris v. State, 994 S.W.2d 927, 931 (Tex. App.—Waco 1999, pet. ref’d)) (internal citations omitted).

      “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”  Florida v. Royer, 460 U.S. 491, 500 (1983); accord Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).  However,

there is an additional component to a routine traffic stop—the license and warrants check.  On a routine traffic stop, police officers may request certain information from a driver, such as a driver’s license . . . , and may conduct a computer check on that information.  It is only after this computer check is completed, and the officer knows that this driver has a currently valid license . . . , that the traffic-stop investigation is fully resolved.

Kothe at 63-64 (internal citation omitted).  “An officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished, as long as the request is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer’s request is required.”  Haas v. State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d). 

      A Texas Department of Public Safety trooper saw Perez driving a pickup truck on the interstate.  The trooper believed that Perez’s license-plate light was defective.  See Tex. Transp. Code Ann. § 547.322(f) (Vernon 1999).  Perez pulled off the road and got out of his truck.  The trooper stopped behind Perez and approached him.  The trooper saw that Perez’s license-plate light was lit, but that the license plate was bent so that the light did not illuminate the plate, and so that the plate was partially obscured.  See id. § 502.409(a) (Vernon Supp. 2006). When the trooper asked for Perez’s driver’s license, Perez said that he did not have his license with him, and gave the trooper a Texas identification certificate.  See id. § 521.101 (Vernon Supp. 2006).  When the trooper checked the certificate, he found that Perez did not have a valid Texas driver’s license.  The trooper gave Perez a written warning for the defective license-plate light, and a citation for driving without a license.  See id. §§ 521.021, 543.005 (Vernon 1999).  After telling Perez how to answer on the citation, the trooper noted that Perez appeared nervous, and asked for consent to search the truck.  Perez orally consented.   

      First, Perez contends that the trooper did not have probable cause to stop or detain Perez.  Perez notes that his license-plate light merely appeared defective, but was not so.  When the trooper saw Perez driving with an apparently defective license-plate light, and with an obscured license plate, the trooper had probable cause to stop Perez. Perez also contends that the trooper’s detention of him exceeded the scope of any initial justification for the stop.  Perez concedes that the trooper “could perhaps still request identification, proof of insurance, and run a warrant check.”  (Br. at 12.)  When the trooper discovered that Perez did not have a driver’s license with him, the trooper had probable cause to detain Perez for investigation of driving without a license or driving with an invalid license. See Tex. Transp. Code Ann. § 521.457(a)-(b) (Vernon Supp. 2006).  The trial court did not file findings of fact.  The record supports the trial court’s implicit finding that the trooper had probable cause to stop and detain Perez.

      The State contends that Perez consented to the search.  Perez contends that his consent was coerced.  When the trooper approached Perez’s truck, Perez said that he needed to urinate.  Perez argues: “After several minutes and several requests, the officer told Appellant that he would allow Appellant to use the restroom while he searched the cab of the vehicle.  Appellant’s freedom to use the restroom was contingent upon his allowing the officer to search the truck’s cab.”  (Br. at 17 (internal citation omitted) (emphasis in orig.).)  Perez does not point to, and we do not see, any indication that the one was conditioned on the other.  The trooper tells Perez that Perez may urinate on the side of the road, and then asks Perez for consent to search.  Accordingly, the record supports the trial court’s implicit finding that Perez’s consent was not coerced.

      Next, Perez contends that the trooper impermissibly searched the truck twice.  After the trooper searched the truck bed and cab, he asked Perez why Perez was not carrying any luggage or tools if, as Perez said, he was traveling from South Texas to Fort Worth to do construction work.  When Perez had, the trooper believed, no good explanation, the trooper told Perez that he intended to continue his search.  The trooper then searched under the hood, and found the marijuana there.  A typical reasonable person would have understood Perez’s general, unwithdrawn consent to the search of the truck to include searching under the hood.  Accordingly, the record supports the trial court’s implicit finding that Perez consented to the search under the hood.[1]

      The trial court did not abuse its discretion in finding by clear and convincing evidence that Perez’s consent was voluntary and in overruling Perez’s motion.  We overrule Perez’s issue.

      Having overruled Perez’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed August 30, 2006

Do not publish

[CR25]

 

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[1]  Perez contends, “Nowhere on the video tape is Perez heard to give his consent to any further searches of his vehicle.”  (Br. at 19.)  Perez does, however, appear to give oral consent a second time before the trooper searches under the hood.  Thus, the record, again, supports the trial court’s implicit finding that Perez gave voluntary consent.