Walter Smith Keneally v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 12, 2007

Affirmed and Memorandum Opinion filed April 12, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00157-CR

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WALTER SMITH KENEALLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 14

Harris  County, Texas

Trial Court Cause No. 1325133

M E M O R A N D U M   O P I N I O N

Appellant, Walter Smith Keneally, was charged by information with driving while intoxicated.  He filed a motion to suppress evidence that the trial court denied.  Appellant then pleaded guilty and received a sentence of three days= confinement and a $1,000 fine.  On appeal, appellant=s first two issues argue that the State failed to meet its burden on the motion to suppress because it did not offer affidavits at the hearing.  In his third and fourth issues, he argues that even if the affidavits were properly considered by the court, they were insufficient because they were dated after they were already on file with the court.  In his fifth and sixth issues, he complains that the affidavit of the officer who initially made the traffic stop does not give sufficient detail to show a Areasonable suspicion.@  Because we find each of these arguments without merit, we affirm the judgment of the trial court.

Factual and Procedural Background

Just after midnight on the morning of August 31, 2005, a police officer saw appellant run a red light at the intersection of Capitol and Avenida de las Americas.  The officer saw signs that appellant had been drinking, and arranged for an officer trained and certified in field sobriety tests to meet him at the scene.  After the second officer administered several sobriety tests, appellant was arrested for suspicion of driving while intoxicated. 

Appellant=s attorney filed a motion to suppress evidence, and the motion was heard on affidavits, as allowed under Code of Criminal Procedure article 28.01, section 1(6).  Though the motion was to be decided on affidavits, the trial court allowed oral argument as well.  At the oral argument, no evidence was offered.  The attorney for the State merely summarized for the court the information contained in the affidavits. Appellant then  presented to the trial court the same arguments he presents here.  A separate hearing was conducted the next month, in which the trial court interviewed the assistant district attorney and the clerk of the court, and determined on the record that the discrepancy in the dates on the affidavits was a typographical error.  He further held that the affidavits did not need to be offered at the first hearing to be properly considered by the trial court, since they were on file with the court.  The trial court ultimately denied the motion to suppress.  The appellant subsequently pleaded guilty and was sentenced  by the court. 

Analysis

I.        Burden of Proof and Standard of Review

To suppress evidence due to violation of the Fourth Amendment, the defendant has the burden to produce evidence that rebuts a presumption of proper police conduct.  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  This burden is satisfied by showing that a search or seizure occurred without a warrant.  Id.  This shifts the burden to the State to establish that the search or seizure was conducted pursuant to a warrant or was reasonable.  Id.  

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We defer to the trial court's determination of facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id.  When the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court=s ruling and presume the trial court made the findings supported by the record that support its conclusion. Id. at 327B28. We review de novo the trial court's application of law to those facts. Id. at 327.

II.       Affidavits Need Not Be Offered at Hearing on Motion to Suppress

Appellant=s first argument is that the State did not meet its burden at the hearing because the State did not offer any affidavits into evidence.  Rather, the State relied on affidavits that had been filed previously with the court, and merely summarized their contents for the court at the hearing.  Appellant claims that the failure to offer affidavits at the hearing means that no evidence was before the trial court upon which it could have found that the State met its burden.  

The Code of Criminal Procedure provides that a pretrial hearing may be conducted in criminal cases for purposes of deciding motions to suppress.  Tex. Code Crim. Proc. art. 28.01, ' 1(6).  When such a hearing is granted, Athe court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court.@  Id.  

Appellant=s argument that evidence must be introduced at the hearing is against established law.  In Rodriguez v. State, the Court of Criminal Appeals was faced with this very question.  844 S.W.2d 744 (Tex. Crim. App. 1992) (per curiam).  In the trial court, affidavits had been attached to the appellant=s motion, but no witnesses were called and no evidence formally introduced at the hearing.  Id. at 745.  The trial court overruled the motion, but the court of appeals held that the trial court erred, since nothing but oral argument was presented in support of the motions.  Id.  The Court of Criminal Appeals noted that the statute clearly allows the trial court to consider the affidavits attached to the motions, though they were not offered at the hearing.  See id.  Therefore, the court of appeals should have considered the affidavits in determining whether the appellant met his burden of proof on his claims.  Id.  

The Rodriguez opinion stands for the proposition that even though no affidavits are submitted at a hearing on a motion to suppress, the affidavits are still before the court for purposes of deciding whether to grant or deny the motion.  Therefore, appellant=s first and second issues must be overruled. 

III.      No Abuse of Discretion To Consider Affidavit

Appellant=s third and fourth issues contend that the trial court erred in considering the affidavits of the police officers in deciding the motion.  The affidavits were each dated December 14, 2005, but were each file stamped by the court clerk December 13, 2005.  Appellant complains that the affidavits were, therefore, improperly sworn and insufficient under article 28.01.  Furthermore, he complains that no one was provided by the State to explain the deficiency. 

In Green v. State, the Court of Criminal Appeals considered a similar issue, when a warrant was dated more than three days after its supporting affidavit.  799 S.W.2d 756 (Tex. Crim. App. 1990).  If a warrant was executed more than three days after the facts supporting it were sworn to, the warrant would be void.  Id. at 758.  According to the Green court=s opinion, if testimony or other evidence shows that the discrepancy is technical or a clerical error, then the court may constructively change the date of an affidavit, so that the effectiveness of a warrant will not be destroyed.  See id. at 761.  Here, the date of the affidavit would be constructively changed so that the affidavit itself can be considered effective.  However, we do not think this difference justifies not following Green.

The trial court heard evidence from the court clerk to the effect that the court clerk=s stamp indicates the actual day the affidavits were filed, and that the clerk=s office would not have allowed them to be filed had they not been previously sworn.  The assistant district attorney testified that the affidavits were notarized before they were filed, and were filed with the court on the fourteenth.  Without deciding which date was correct, the court found that the discrepancy in dates was due to a typographical error.  As this is a determination that depends in part on the credibility of the witnesses, we give great deference to the trial court=s determination. Given that both the assistant district attorney and the clerk of the court testified that the affidavits were notarized before they were filed, the court had ample evidence to make the decision he did.  Therefore, there was no abuse of discretion, and appellant=s third and fourth issues are overruled.

IV.      Facts Shown in Affidavit Are Sufficient

Appellant=s final argument is that the affidavit of the officer who made the traffic stop did not show specific articulable facts sufficient to show a reasonable suspicion.  The officer=s affidavit states that he Aobserved a grey Chevy Tahoe run a red light at Capitol and Avenida de las Americas.@  Appellant complains that the affidavit does not reflect whether the light was an official traffic control signal, whether the light was a steady red light or flashing, whether there was a marked stop line at the intersection, whether the vehicle came to a stop before proceeding, what road the vehicle was traveling before approaching the intersection, whether the vehicle made a right or left turn at the intersection, or whether there was a sign that made that turn impermissible.

To show a reasonable suspicion an officer must have specific, articulable facts that, when combined with the rational inferences from those facts, would lead him to reasonably suspect that a particular person actually is, has been, or soon will be engaged in criminal activity.  Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).  The basis of appellant=s complaint is Ford v. State.  158 S.W.3d 488 (Tex. Crim. App. 2005).  In Ford, an officer testified at a hearing on a motion to suppress that he had pulled over the defendant=s car because it was Afollowing too close.@  The trial court denied the motion to suppress and the court of appeals affirmed.  The Court of Criminal Appeals, however, held that specific articulable facts were needed to give the trial court the means to assess whether the officer=s opinion was objectively reasonable, and that the officer=s testimony was insufficient in that regard.  Id. at 493.

Courts must be provided with specific, articulable facts because allowing an officer=s opinion to suffice in place of facts destroys the protection provided by the review of a detached and neutral judge.  See id.  In this case, the reason for the traffic stop was failure to stop at a red traffic light.  See Tex. Transp. Code ' 544.007.  The officer testified that appellant=s vehicle ran a red light.  Running a red light is commonly understood to mean passing through an intersection without stopping for a red light.  The fact that the officer testified using the word Arun@ rather than the language from the statute does not change the fact that he testified to the discrete fact that the vehicle passed through an intersection without stopping when the traffic light was red.  The testimony was not in the nature of an opinion, as is the case where officers testify that a defendant was driving recklessly or following too closely.  See Ford, 158 S.W.3d at 493 (describing the danger to be avoided as A[a]llowing a police officer=s opinion to suffice in specific facts= stead@); Myers v. State, 203 S.W.3d 873, 881 (Tex. App.CEastland 2006, pet. ref=d) (holding that an officer=s testimony that an inspection sticker was expired satisfied requirements of Ford because the statement was based on only one objective criterion).  The officer testified to a single fact, which just so happened to constitute an offense under the Transportation Code.  Therefore, the trial court did not run afoul of Ford in deciding that the officer=s testimony did provide specific and articulable facts.

Further, the facts that appellant says are not reflected by the officer=s affidavit are largely immaterial to whether the offense was committed.  The only fact in appellant=s list germane to whether an offense occurred is whether the vehicle came to a stop before proceeding.  As discussed above, we believe the officer directly testified to this, although he did not do so in the language of the statute.  All the other facts that appellant asserts are lacking would merely describe the circumstances under which the offense occurred.  None of them are required to describe the offense of failure to stop at a red light.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).