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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00152-CR ______________________________
THE STATE OF TEXAS, Appellant
V.
ZACHARY JAMES HOLLAND, Appellee
On Appeal from the County Court Fannin County, Texas Trial Court No. 43511
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
As Texas Department of Public Safety Troopers Ricardo Landeros and Carmen Barker (1) traveled south on Highway 273 in Fannin County toward an establishment known as "J.C. Whiskey River," they noticed a vehicle driven by Zachary James Holland emerge from that establishment onto Highway 273 and turn north toward them. From Landeros' and Barker's testimony at the pretrial suppression hearing, before stopping Holland's vehicle, the troopers perceived no evidence (2) that Holland was intoxicated; and the only reason they gave for the stop was that, when he was about three to four car lengths (3) away from the troopers' vehicle, Holland briefly switched his vehicle's headlights to high beams before returning them to low beams. After stopping Holland, however, the troopers discovered numerous indicators that Holland was intoxicated. (4)
Holland successfully challenged the stop with a pretrial motion to suppress evidence obtained as a result of the stop. The State appeals the suppression of that evidence, claiming that the troopers had reasonable suspicion for the stop. We affirm.
At the suppression hearing, Holland argued the high-beam light did not interfere with the troopers' vision. The State responded that, no matter how trivial his actions, Holland violated the law by turning on his high beams within 500 feet of the troopers. The trial court stated, "Based on . . . Trooper Landeros's testimony, it went from low to high and right back to low. It shows, to this Court's satisfaction, that the operator was trying to follow the law. And I understand what you're -- but that's going to be the order of the court."
We review the trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court's determination of historical facts that depend on credibility, but reviewing de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court's evidentiary ruling "will be upheld on appeal if it is correct on any theory of law that finds support in the record." Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); see Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Generally, after granting deference to the trial court's determination of historical facts, we review de novo determinations of reasonable suspicion and probable cause. Guzman, 955 S.W.2d at 87.
Individuals have the right to be secure against unreasonable searches. U.S. Const. amend. IV; Tex. Const. art. I, § 9. A criminal defendant alleging a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). "A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant." Id. The burden then shifts to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances. Id. at 672-73. Evidence must be excluded if a causal connection is established between illegal actions by law enforcement and the evidence. Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); see Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).
Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, the police must be able to articulate specific facts that support a reasonable suspicion that the suspect is engaging in, or is about to engage in, criminal activity. "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). "A routine traffic stop resembles an investigative detention." State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). A law enforcement officer may lawfully stop and detain a person for a traffic violation committed in the presence of the officer. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.--Texarkana 2000, pet. ref'd).
The State's sole argument, both at the suppression hearing and on appeal, is that the officers had reasonable suspicion that Holland violated Section 547.333(c) of the Texas Transportation Code. Section 547.333(c) provides as follows:
(c) A person who operates a vehicle on a roadway or shoulder shall select a distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle, except that:
(1) an operator approaching an oncoming vehicle within 500 feet shall select:
(A) the lowermost distribution of light or composite beam, regardless of road contour or condition of loading; or
(B) a distribution aimed so that no part of the high-intensity portion of the lamp projects into the eyes of an approaching vehicle operator; and
(2) an operator approaching a vehicle from the rear within 300 feet may not select the uppermost distribution of light.
Tex. Transp. Code Ann. § 547.333(c) (Vernon 1999).
Although the reason for suppression enunciated by the trial court (that Holland was trying to comply with the law) is not a valid legal basis for granting a motion to suppress, the trial court also found that the exception in subsection (c)(1)(B) of the above section applied to this case. (5) The trial court made a finding of fact that "the Defendant did not operate any part of the high intensity portion of the lamp of the motor vehicle so that it projected into the eyes of an approaching vehicle's operator." We are obligated to uphold the trial court's ruling on the motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). "That rule holds true even if the trial court gave the wrong reason for its ruling." Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
The State argues the fact that the high-beam lights were activated approximately three to four car lengths in front of the police requires a finding that the light did project into the officers' eyes. But there is some evidence in the record that the high-beam lights were aimed so that no part of the high-intensity portion of the lamp projected into the eyes of an approaching vehicle operator. Landeros testified he was not "blinded" by the high beams. (6) When asked "[a]nd at no time, did these high beams, in any way, interfere with your vision, your operation of your vehicle, or in any way interfere with anything about your operating your vehicle, right," Landeros responded, "That's correct." Barker testified she was not "blinded by the light" and could not remember whether she had to avert her eyes. While the officers testified they observed Holland activate the high beams within 500 feet of their patrol car, the event could have been observed from any angle.
The trial court's finding was entirely factual and has some support in the record. We must afford "almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact-findings are based on an evaluation of the witnesses' credibility and demeanor." See Ross, 32 S.W.3d at 856. While we may not have reached the same conclusion, we are prohibited from substituting our opinion for the trial court's. Because the alleged violation of Section 547.333(c) of the Texas Transportation Code was the sole justification for the traffic stop, the trial court did not abuse its discretion in determining the officers lacked reasonable suspicion to justify stopping Holland. (7)
We affirm the order of the trial court granting Holland's motion to suppress.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 17, 2008
Date Decided: December 12, 2008
Do Not Publish
1. Barker, who had been commissioned as a state trooper approximately a month before, was a passenger in the patrol car; Landeros, Trooper Barker's field training officer, was driving the patrol car.
2. Landeros testified he had activated his radar as Holland approached, establishing that Holland was not speeding. Holland was not weaving in his lane and did not cross the center lane or cross over into "the right-hand-side lane."
3. Barker testified she estimated three to four car lengths to be fifteen to twenty yards.
4. Holland admitted to drinking earlier in the evening, had slurred speech, had glassy eyes, and had a strong odor of alcohol. Based on Holland's performance of several field-sobriety tests, the Troopers concluded that Holland was intoxicated. The State intended to use this evidence obtained during the traffic stop to prosecute Holland for misdemeanor driving while intoxicated.
5. The State argues the trial court erred in granting the motion to suppress because Holland "was trying to follow the law." We agree with the State that proof that a defendant unsuccessfully tried to follow the law is not sufficient to support a motion to suppress. If a defendant commits a traffic offense, even unintentionally, a police officer may conduct a traffic stop.
6. Landeros opined that, because Holland was driving a 1957 Chevrolet, the vehicle's headlight intensity was less than more modern cars. The trial court could have reasonably disregarded this explanation in part or whole. "The trial judge is the sole fact finder at a hearing on a motion to suppress evidence obtained in a search, and may choose to believe or disbelieve any or all of a witness' testimony." Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
7. The State also argues the trial court applied the wrong standard for reasonable suspicion. The State cites a number of cases in support of its argument "the issue is not whether an offense was actually committed but, instead, whether the officer had 'reasonable suspicion' to believe an offense was being committed." See Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001); Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977); Hicks v. State, 255 S.W.3d 351 (Tex. App.--Texarkana 2008, no pet.); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.--Fort Worth 2001, pet. ref'd). As this Court has stated, "proof that an offense was actually committed is not necessary to justify the investigative detention as long as [the police officer] reasonably believed that a violation was in progress." Hicks, 255 S.W.3d at 354-55. An incorrect understanding of the law, however, does not give rise to a reasonable belief. An officer's incorrect understanding of the law will not "satisfy the Fourth Amendment and rise to the level of reasonable suspicion." Fowler v. State, No. 02-06-00183-CR, 2008 Tex. App. LEXIS 6253 (Tex. App.--Fort Worth Aug. 14, 2008, pet. filed).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00037-CV
______________________________
DANNY WAYNE MARTIN, Appellant
V.
AMANDA JOANN PARRIS, Appellee
On Appeal from the 102nd Judicial District Court
Red River County, Texas
Trial Court No. CV01804
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Danny Wayne Martin appeals from a final protective order entered in favor of his ex-girlfriend Amanda JoAnn Parris after a finding of family violence. In his pro se appeal, Martin complains that the trial court erred in dismiss[ing] the public defender from representing him in the underlying civil proceeding. Martin alleges that lack of counsel forced him to violate his Fifth Amendment rights and that the Equal Protection Clause of the United States Constitution was violated because he was not treated the same as those similarly situated. He also complains that the evidence was factually insufficient to support the issuance of the protective order, that the trial judge was biased, and that the trial court committed the following alleged errors: (1) failing to orally pronounce that family violence was likely to occur in the future; (2) holding Martin in contempt of court; (3) failing to limit the opposing partys questioning; and (4) admitting evidence where there was no proper foundation. We affirm the trial courts judgment.
I. Expiration of the Protective Order Does Not Render this Appeal Moot
Appellate courts decide only those issues in which a controversy exists. Camarena v. Tex. Employment Commn, 754 S.W.2d 149, 151 (Tex. 1988). The final protective order in this case expired by its own terms on August 12, 2010. We must first address whether the expiration of the protective order has rendered this case moot before we examine the merits of Martins claim. Clements v. Haskovec, 251 S.W.3d 79, 83 (Tex. App.Corpus Christi 2008, no pet.); State for the Protection of Cockerham v. Cockerham, 218 S.W.3d 298, 302 (Tex. App.Texarkana 2007, no pet.).
The general rule is that a case becomes moot, and thus unreviewable, when it appears that a party seeks to obtain relief on some alleged controversy when in reality none exists. Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 822 (Tex. App.Fort Worth 2007, no pet.) (citing Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)); Cockerham, 218 S.W.3d at 301. Texas law does recognize a collateral consequences exception to the mootness doctrine. Fed. Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994); Cockerham, 218 S.W.3d at 302. The collateral consequences exception is only invoked under narrow circumstances when vacating the underlying judgment cannot cure adverse consequences suffered by the appellant. Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006). Such narrow circumstances exist when as a result of the judgments entry (1) concrete disadvantages or disabilities have in fact occurred, are imminently threatened to occur, or are imposed as a matter of law; and (2) the concrete disadvantages and disabilities will persist even after the judgment is vacated. Id.; see Gen. Land Office of the State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (noting collateral consequences exception is invoked only when prejudicial events occurred whose effects will continue to stigmatize after dismissal of case as moot).
Appeals of expired protective orders issued for family violence often fall into this collateral consequences exception because although such orders may ultimately expire, the stigma attached to them generally does not. Clements, 251 S.W.3d at 84; see Schaban-Maurer, 238 S.W.3d at 82223; Cockerham, 218 S.W.3d at 303. This stigma is not only a social burden; there are also attendant legal consequences to being the subject of such a protective order. Schaban-Maurer, 238 S.W.3d at 82223 (noting courts consider a history of domestic violence when judging child conservatorship) (citing Tex. Fam. Code Ann. § 153.004(f) (Vernon 2008)). For example, the Texas Family Code requires that information in a protective order be entered into the state-wide law information system where it presumably remains for various purposes. Amir-Sharif v. Hawkins, 246 S.W.3d 267, 270 (Tex. App.Dallas 2007, pet. dismd w.o.j.); see Tex. Fam. Code Ann. § 86.0011 (Vernon 2008). In Cockerham, we noted there could be other possible legal consequences that could occur should the appellant be convicted of other criminal acts. Cockerham, 218 S.W.3d at 303.[1] Thus, we find that the collateral consequences exception to the mootness doctrine applies in this case. Because the expiration of the protective order does not render this appeal moot, we may consider the merits of Martins claims. Id. at 30304.
II. Sufficient Evidence Supported the Trial Courts Judgment
Martin complains the courts judgment was contrary to the evidence and findings at trial.
A. Standard of Review
Because a protective order provides injunctive relief, we apply the standard of review that is applied when reviewing injunctions. In re Epperson, 213 S.W.3d 541, 542 (Tex. App.Texarkana 2007, no pet.). Thus, we review the trial courts grant of the protective order against Martin for abuse of discretion. Id. at 543 (citing Operation Rescue-Natl v. Planned Parenthood of Houston & S.E. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998)). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 24142 (Tex. 1985)).
B. Factual Background
Martin was the father of one of Parris two young children. He was incarcerated prior to the incidence of alleged family violence that prompted Parris petition for a protective order. Parris testified at the hearing that Martin wrote threatening letters to her while in prison. Martin moved to Paris, Texas, after his release.
Parris testified Martin just walked into her house one afternoon drinking a Budweiser beer . . . . And he told me, he said, Youve got two choices . . . . You can either pack the kids up and come with me to Paris for a couple of weekends -- or for a couple of days, or you can die right here. Parris refused to leave with the kids. She testified Martin just yanked me up by the neck and my hair and took me in the kitchen and slammed me up against the kitchen counter and got a knife. Martin held the knife to Parris throat, but allowed her to attend to her younger daughter when she started crying. Parris comforted her child while begging Martin to leave. Again, Martin held the knife to Parris throat. The act was witnessed by Parris eldest daughter. With both children by her side, Parris told him to stop, insisted, Im not going anywhere with you, and begged Martin to leave.
At some point when Martin turned to make a telephone call, Parris testified she just took off running out the door, screaming for help. And he came out, running after me, and he yanked me by the back of my hair and he dragged me back into the house. Martin had noticed that there were two witnesses outside, and assumed they would call the police. He slapped Parris and instructed her and the children to hide in the back room of the house. The police arrived shortly thereafter. Parris testified she was wanting to scream for help but he was telling me no, to be quiet, and I was just holding my kids close to me so that nothing would happen to them. After the officers left, Martin said he would let Parris live if she did not call the police, but would kill her if she did.
As far as the nature of their prior relationship, Parris testified Martin would either get drunk and I would always go find him, try to bring him home. And then when he would get home, he would either throw me around, call me a stupid b****, or he would slap me. He would pull me by my hair. He would make me have sex with him when I didnt want to.
Martin testified on his own behalf. He claimed that he witnessed Parris molesting his daughter, went to call the police, and that Parris come at me with a knife. He admitted to previous abuse, but stated he would only slap her after she slapped him first.
After hearing the evidence, the trial court found
that the respondent in this matter, Mr. Danny Martin, has in fact engaged in family violence on the date in question, as well as prior occasions, and a family relationship has existed as provided in the family code that is protected against violence. Having found that there have been acts of family violence perpetrated against the movant, Amanda Parris, this Court now hereby enters a protective order in favor of Ms. Parris against Mr. Martin at whichever time he may be released from custody.
C. Analysis
A trial court shall render a protective order if the court finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. § 81.001 (Vernon 2008). Family violence includes dating violence, which means:
an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
Tex. Fam. Code Ann. §§ 71.004(3), 71.0021(a) (Vernon 2008).
Martin and Parris both testified that they previously engaged in a dating relationship. After Parris testimony, Martins presentation of contrary evidence came in the form of denials of actions alleged to have been committed by him, coupled with allegations that Parris was molesting his daughter.[2] As finder of fact, the trial court was free to believe Parris testimony and disbelieve Martins denials. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). We conclude that the trial court was within its discretion, based on Parris testimony, to find Martins actions in slamming Parris into the kitchen counter, slapping her, and dragging her by the hair constituted actions intended to result in physical harm, bodily injury, and/or assault. According to Parris, Martin also held a knife to her throat and threatened to kill her twicefirst, if she did not leave with him and the children, and second, if she informed the police of his actions. The trial court could conclude these acts and threats reasonably placed Parris in fear of imminent physical harm, bodily injury, and/or assault. We find the evidence legally and factually sufficient to support the trial courts finding that family violence occurred.
Next, we have stated, Oftentimes, past is prologue; therefore, past violent conduct can be competent evidence which is legally and factually sufficient to sustain the award of a protective order. Epperson, 213 S.W.3d at 544. Parris testified to a history of verbal, physical, and sexual abuse by Martin during their past relationship, as well as threats received before and after Martins incarceration. Martin admitted to slapping Parris during their dating relationship, though apparently in retaliation. Coupled with the two threats that Martin would kill Parris, it was reasonable for the trial court to conclude that Martin would likely commit, or would threaten to commit acts constituting family violence. See id. We find the evidence legally and factually sufficient to support the trial courts discretionary finding that family violence was likely to occur in the future. Martins first point of error is overruled.
III. Appealability and Preservation Issues
A. Martin Did Not Preserve Complaint of Allegedly Omitted Statutory Findings
Although the written protective order specified a finding that family violence was likely to occur in the future, Martin claims that the trial court erred in failing to make the requisite finding at the close of the hearing. See Tex. Fam. Code Ann. § 85.001(a) (Vernon 2008). Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. By failing to object or otherwise raise this issue below, Martin failed to preserve this error for our review. See Melton v. Tex. Dept of Family & Protective Servs., No. 03-08-00168-CV, 2010 WL 668917, at *2 (Tex. App.Austin Feb. 25, 2010, no pet.) (mem. op.).
Nevertheless, prior to the close of the hearing, the court stated, Under the terms of that protective order he is to stay five hundred feet away from her, and he is not going to have access to the children who are also a part of this sui[t], as this Court feels that Mr. Martins conduct will constitute an endangerment to the children as well as Ms. Parris. Were this point of error preserved, we would construe the courts statement as a finding that family violence would likely occur in the future. This point of error is overruled.
B. Contempt Order Is Not Appealable
Martins brief summarily states that the trial court acted without any guiding rules or principles. Our review of the reporters record citation provided reveals that Martin is complaining of an order of contempt entered by the trial court.
During Martins cross-examination, Martin made relevance objections instead of answering questions asked. The trial court attempted to remedy the situation in the following manner:
THE COURT: Sir, you answer the questions that are propounded to you.
A Well, you be honorable.
THE COURT: I beg your pardon?
A Im asking you to please be honorable.
THE COURT: Sir, youre in contempt. Six months in jail. Thats the first thing. Continue.
The court explained:
Mr. Martin made a comment to the Court which the Court deems to be very inappropriate, which to the Court seems to be an attack upon the integrity of the Court and the judiciary. This Court is of the opinion that that constituted an act of direct contempt. The Court hereby adjudicated him guilty of direct contempt of this Court by the responses that have been entered to it or the comments that were made by Mr. Martin to the Court. This Court assessed the punishment at six months confinement in the Red River County jail.
In his brief, Martin argues that his comment was not an attack as much as it was the truth, nor does a citizen need put up with such foulness in its judicial system, nor the trial judge in question.
We broadly interpret Martins brief as an appeal of the order of contempt. Decisions in contempt proceedings cannot be reviewed through a direct appeal. Hatton v. Griar, No. 4-09-00630-CV, 2011 WL 175501, at *2 (Tex. App.Houston [14th Dist.] Jan. 20, 2011, no pet. h.) (mem. op.); see Ex parte Williams, 690 S.W.2d 243 n.1 (Tex. 1985); Pandozy v. Beaty, 254 S.W.3d 613, 616 (Tex. App.Texarkana 2008, no pet.). Contempt orders may only be reviewed through a habeas corpus proceeding or by writ of mandamus. Hatton, 2011 WL 175501, at *2 (citing Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex. App.Houston [1st Dist.] 1994, writ denied)). Accordingly, no attempted appeal from the contempt order in this case will be considered.
C. Issue of Bias Was Not Preserved
Martin complains that the trial judges findings were the result of passion, prejudice, and improper motive and accuses the judge of bias and prejudice against Martin and deep seated favortism [sic] towards the States attorney. A complaint that a trial judge was biased must generally be preserved in the trial court. See Tex. R. App. P. 33.1(a); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Preservation is unnecessary only if the comment cannot be rendered harmless by proper instruction. In re M.E.C., 66 S.W.3d 449, 459 (Tex. App.Waco 2001, no pet.) (citing Francis, 46 S.W.3d at 241).
Martin bears the burden to explain how any comments made by the trial judge were incurable or would excuse the failure to preserve error. Francis, 46 S.W.3d at 241. [J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Liteky v. United States, 510 U.S. 540, 555 (1994). A judges ordinary efforts at courtroom administration-even a stern and short-tempered judges ordinary efforts at courtroom administration-remain immune. Id. at 556.
In support of this point of error, Martin cites to the order of contempt and the courts decisions overruling his relevance objections to questions involving his place of employment and address during his cross-examination. Review of the trial judges remarks leads us to conclude they were aimed at explaining his decision to hold Martin in contempt of court. The judges comment that either the responses or the questions asked were not subject to objection merely explained the judges decisions to overrule Martins relevance objections. Martins brief does not adequately explain why the judges efforts at courtroom administration were examples of incurable bias or prejudice such that he would be excused from preserving error. We find that because Martin did not raise this issue with the trial court, it is not preserved for our review. Watson v. Michael Haskins Photography, Inc., No. 10-05-00010-CV, 2005 WL 3148074, at *3 (Tex. App.Waco Nov. 23, 2005, no pet.) (mem. op.).
Had the point been properly preserved, we would find the trial courts comments were not comments on the weight of the evidence, but were procedural explanations that were within the discretion vested in the trial court during the conduct of a trial. Bott v. Bott, 962 S.W.2d 626, 631 (Tex. App.Houston [14th Dist.] 1997, no pet.).
This point of error is overruled.
D. Martin Did Not Seek Counsel
Martin complains that the trial court committed fundamental error or plain error when it dismissed[3] his attorney. The record demonstrates Martin was indigent, that Dan Meehan, a public defender, was appointed to represent him on criminal charges arising from the incident, and that Meehan was present to address criminal matters also being heard at the same time as the hearing on the civil protective order. Prior to the civil hearing, the following exchange occurred:
THE COURT: . . . . Mr. Meehan, were you here as the public defender in these other cases, sir?
MR. MEEHAN: On Mr. Martin?
THE COURT: Yes.
MR. MEEHAN: I assume I am. Yes, sir.
THE COURT: All right, I have notated you as a public defender. As far as representation in a protective order, I dont think that you are obligated as the public defender.
In this case, the trial judge had the power to appoint counsel for Martin. Tex. Govt Code Ann. § 24.016 (Vernon 2004)[4] (A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel . . . .). However, the record demonstrates Martin failed to request appointment of counsel to represent him in this civil matter.[5] Had Martin made such a request, we would review the trial courts denial for an abuse of discretion. Hines v. Massey, 79 S.W.3d 269, 272 (Tex. App.Beaumont 2002, no pet.).[6] Because Martin did not request that counsel be appointed to represent him, he has failed to preserve this issue for our review. Hull v. Davis, 211 S.W.3d 461, 466 (Tex. App.Houston [14th Dist.] 2006, no pet.).[7] This point of error is overruled.
E. Martin Failed to Preserve Equal Protection Argument
Martin summarily alleges that the Equal Protection Clause of the United States Constitution was violated because he was not treated the same as those similarly situated. His briefing reveals that he is not complaining of any error committed by the trial court with regard to the Equal Protection Clause. Rather, he cites to Striedel, and urges this Court to: find that the facts of this case are the same as Striedel, to hold that he was entitled counsel, and conclude that reversal is necessary because Appellant has a right to equal protection of the laws. At a minimum, [a] complaint on appeal must address specific errors committed by the trial court. Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 889 (Tex. App.Texarkana 2009, pet. denied). Because Martins brief does not complain of any act by the trial court, this point of error is overruled.
F. Martin Failed to Preserve Error Regarding Lack of Proper Foundation
Martin claims that he objected to the evidence because there was no proper foundation for its admission. His record citations demonstrate that while there was no such objection, the following objections occurred during Parris direct examination:
Q What kind of knife did he get?
A A regular kitchen knife.
Q How big was it?
. . . .
Q Let the record reflect shes holding up approximately a six-inch blade . . . .
. . . .
THE COURT: And, Mrs. Collins, the record needs to reflect that she is demonstrating approximately a six-inch blade.
MR. MARTIN: Objection. I dont see any knife here.
THE COURT: Overruled, sir.
MR. MARTIN: I dont see any evidence.
THE COURT: Overruled . . . .
. . . .
Q Has he committed acts of violence against you in the past?
A Yes, he has.
MR. MARTIN: Objection. No evidence.
THE COURT: Overruled.
During Parris cross-examination, Martin lodged an objection that there is no evidence whatsoever at this hearing, Your honor. The remaining objections dealt with claims of Fifth Amendment privilege and relevance objections to questions regarding his place of employment and current and past addresses.
It is well-settled that an objection at trial that does not comport with the complaint raised on appeal preserves nothing for appellate review. See Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Whereas his objections to the trial court were statements that in his opinion, Parris testimony did not constitute evidence, that he was entitled to assert a Fifth Amendment privilege to questions regarding employment, and that information about his employment and address were irrelevant, his complaint on appeal deals with want of such foundation.[8] We conclude that Martins objections at trial do not comport with his point raised on appeal. Therefore, the point of error was not preserved, and it is overruled.
IV. Martins Fifth Amendment Assertion of Privilege Was Not Made in Good Faith
It is well established that the Fifth Amendment privilege may be asserted in civil cases where a party reasonably believes his or her answers will be incriminating. Tex. Dept of Public Safety Officers Assn v. Denton, 897 S.W.2d 757, 760 (Tex. 1995); In re Suarez, No. 14-08-00740-CV, 2008 WL 4310098, at *2 (Tex. App.Houston [14th Dist.] Aug. 28, 2008, no pet.). The trial court is to determine whether the assertion of the privilege is in good faith and is justifiable under the totality of the circumstances. In re Commitment of Lowe, 151 S.W.3d 739, 745 (Tex. App.Beaumont 2004, pet. denied). A court can consider whether the privilege is being asserted in a bona fide fear of self-incrimination or merely to avoid discovery or to create delay. Denton, 897 S.W.2d at 763.
The record contains only one assertion of privilege to the following:
Q Okay, and where did you say you were working, or did you say?
A Thats really nobodys business.
Q Where youre working is nobodys business?
A Yes, I work; but no, it aint your business.
Q Will you instruct the defendant -- or the respondent . . .
A I claim the Fifth Amendment.
After the trial court overruled the assertion of privilege, Martin testified he was a self-employed roofer. Because we find that a belief that such an answer would be incriminating was unreasonable and unjustifiable, we conclude Martin was not entitled to refuse to answer the question based on an assertion of Fifth Amendment privilege. Further, under these circumstances, the trial court could find that the assertion was not made in good faith. This point of error is overruled.
V. Trial Court Did Not Abuse Discretion in Admitting Evidence
We apply an abuse of discretion standard to the question of whether a trial court erred in an evidentiary ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion when it rules without regard to any guiding rules or principles. Id. We must uphold the trial courts ruling if there is any legitimate basis for its ruling. Id.
Martin claims that the trial court abused its discretion by failing to stop the prosecutor from asking irrelevant questions. We interpret Martins argument as suggesting that the trial court erred in overruling his relevance objections when questioned about his place of employment and living arrangements. In her petition for a protective order, Parris asked the trial court to order that Martin be prevented from going to or near her residence and/or possible place of employment. Specifically, Parris requested that Martin be ordered to maintain a distance of 200 feet. Thus, the proximity of Martins residence and place of employment were facts the trial court could have considered in determining the feasibility of the requirement to maintain a certain distance from Parris. We find that the trial court did not abuse its discretion in overruling Martins relevance objections. Martins last point of error is overruled.
VI. Conclusion
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: February 17, 2011
Date Decided: March 4, 2011
[1]Further, the August 20, 2008, protective order in this case ordered that Martins license to carry a concealed handgun be suspended due to the trial courts finding of family violence. Tex. Govt Code Ann. § 411.187(a)(5) (Vernon Supp. 2010). The normal expiration period for a concealed handgun license is the first birthday of the license holder occurring after the fourth anniversary of the date of issuance, a date which has not passed. Tex. Govt Code Ann. § 411.183 (Vernon Supp. 2010).
[2]Martins allegation that Parris molested his child was referred to Child Protective Services.
[3]Because there is nothing in the record demonstrating Martin had an attorney-client relationship with any attorney with regard to the civil protective order, we find that any complaint regarding dismiss[al] of his attorney is without merit.
[4]Martin argues that Section 81.007(a) of the Texas Family Code guarantees him right to counsel in this civil matter. That section does not apply. Section 81.007(a) states, The county attorney or the criminal district attorney is the prosecuting attorney responsible for filing applications under this subtitle unless the district attorney assumes the responsibility by giving notice of that assumption to the county attorney. Tex. Fam. Code Ann. § 81.007(a) (Vernon 2008).
[5]We distinguish cases cited by Martin which discuss appointment of counsel when faced with termination of parental rights or adoption issues. Lassiter v. Dept of Soc. Servs. of Durham County, N.C., 452 U.S. 18 (1981); Stanley v. Illinois, 405 U.S. 645 (1972); Armstrong v. Manzo, 380 U.S. 545 (1965); May v. Anderson, 345 U.S. 528 (1953).
[6]We distinguish the case of Striedel v. Striedel, 15 S.W.3d 163 (Tex. App.Corpus Christi 2000, no pet.). In Striedel, our sister court found that the trial court should have considered appellants request for counsel in a protective order proceeding which affected appellants right to see his child. Id. at 167. In Striedel, appellant had preserved the issue by requesting an attorney to represent him. Id. at 165. Recognizing this fact, our sister court clarified we note, however, that appellant made repeated attempts in the trial court to raise this issue, all to no avail. We do not mean to express here any belief that the right to counsel cannot be waived. Id. at 166 n.1.
[7]Martin argues that his point of error presents fundamental error that can be addressed for the first time on appeal. Fundamental error in a civil case is rare, but occurs when the record shows that the court lacked jurisdiction or when the error directly and adversely affects the public interest as that interest is declared by the statutes and state constitution. Matter of J.G., 905 S.W.2d 676, 680 n.1 (Tex. App.Texarkana 1995), writ denied, 916 S.W.2d 949 (Tex. 1995) (per curiam) (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)). The record demonstrates the trial court had jurisdiction of the matter, Martin does not address how his lack of counsel with respect to Parris protective order adversely affected the public interest, and caselaw establishes this error is one that can be waived. See Hull, 211 S.W.3d at 466.
[8]There was no assertion that either Parris or Martin did not have personal knowledge of their testimony.
Document Info
Docket Number： 06-08-00152-CR
Filed Date： 12/12/2008
Precedential Status： Precedential
Modified Date： 9/7/2015