Keith Ray Miller v. State ( 2011 )

NO. 07-10-0511-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 22, 2011
______________________________
KEITH RAY MILLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 3979; HONORABLE DAN MIKE BIRD, PRESIDING
______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Keith Ray Miller (appellant) appeals an order adjudicating him guilty of
possessing marijuana in an amount greater than fifty pounds and less than 2,000
pounds. Through ten issues, he contends that the trial court abused its discretion by 1)
failing to allow discovery of the videotape of appellant’s traffic stop, 2) denying
appellant’s motion for a continuance, and 3) adjudicating appellant guilty when the State
failed to prove by legally sufficient evidence the allegations contained in its motion to
proceed with guilt. We affirm.
Background
Appellant pled guilty to the charged offense and was placed on five years
deferred adjudication. Subsequently, the State filed a motion to adjudicate appellant
guilty of possessing marijuana. Through the motion, appellant was accused of violating
the terms of his probation in several ways. He allegedly drove a motor vehicle while
intoxicated, failed to report an arrest, and failed to satisfy certain financial obligations.
The trial court set the State’s motion for hearing, at which appellant appeared.
Before being asked to plead to the allegations, appellant sought a continuance
because he had not had an opportunity to review the video of the stop which resulted in
a DWI charge. The trial court denied both his requests for a copy of the video and for a
continuance. Following that, he pled true to the allegation about failing to meet financial
obligations. But, the omission was purportedly due to his inability to satisfy them.
A hearing was held and the State called Eli Rivera (Rivera) who was working for
the police department for the city of Woodbranch at the time he stopped and arrested
appellant. According to Rivera, he was working patrol when he heard a dispatch
regarding a reckless driver. He then observed a vehicle matching the description in the
dispatch and began following it. Subsequently, he observed appellant “fail to maintain a
single marked lane.” Rivera activated his lights, however, appellant did not stop
immediately. The officer’s suspicions were that appellant was under the influence of
alcohol. When appellant stopped, Rivera observed him and a child passenger in the
vehicle along with an open container of an alcoholic beverage in the center console.
When the officer made contact with appellant, he observed bloodshot eyes and a very
strong odor of alcoholic beverage on his breath. Appellant admitted to having
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consumed an alcoholic beverage prior to the stop. After performing field sobriety tests,
the officer concluded that appellant was driving impaired or under the influence of
alcohol. Carol Holcomb, an adult probation officer, testified regarding appellant’s failure
to report and to meet his financial obligations. Furthermore, appellant was arrested and
failed to report it within 48 hours and he consumed alcohol in violation of his probation
conditions.
Appellant called Laverne Reese Miller (Miller), appellant’s wife, to testify. She
stated that appellant was injured at work and had become disabled. He had been
receiving payments related to the disability but was no longer receiving same. She
further testified that she was the sole source of income and that their two adult
daughters were living at home. Appellant testified that he was disabled, that he was not
drinking the night he was stopped and had submitted to a blood test. He denied the
failure to report allegations and stated that he had either reported in person or in writing.
In regards to the missed payments, he testified that he had $1800.00 still owed on his
financial obligations but he was unable to make his payments due to his disability. He
admitted that he did not report his arrest within 48 hours. The trial court found appellant
had committed all of the allegations made in the State’s motion and sentenced him to
fifteen years in prison.
Issues Three-Eight – Sufficiency
We begin our review by addressing issues three through eight. Through them,
appellant questions the sufficiency of the evidence to support the trial court’s decision to
adjudicate his guilt. We overrule them.
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As previously mentioned, appellant pled true to the allegation regarding his
failure to report his arrest for DWI within 48 hours. Pleading true to an accusation is
sufficient evidence upon which to adjudicate guilt and revoke probation. Atchison v.
State, 124 S.W.3d 755, 758 n.4 (Tex. App.–Austin 2003, pet. ref'd). Indeed, an
appellant cannot question the sufficiency of the evidence underlying the decision once
he pled true. See Cole v. State, 578 S.W.2d 127,128 (Tex. Crim. App. [Panel Op.]
1979); Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App.–Houston [14th Dist.] 2000,
no pet.).
Issues One and Two – Discovery Motion and Continuance
The first two issues before us involve the State’s purported failure to provide
appellant discovery, i.e. the video of his stop, and the trial court’s refusal to grant his
motion to continue. Both are overruled.
Regarding the continuance, appellant’s motion was verbal. However, statute
requires that it be written, TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006), and
sworn to. Id. art. 29.08. Because the latter requirements were not satisfied, appellant
forfeited the right to complain about the decision. Anderson v. State, 301 S.W.3d 276,
280 (Tex. Crim. App. 2009).
As for the trial court’s denial of his discovery motion, preservation of that
complaint was dependent upon appellant moving for a continuance; that is, he was
required to file a written and verified motion to continue. Cudjo v. State, 345 S.W.3d
177, 187 (Tex. App.–Houston [14th Dist.] 2011, no pet.). Since appellant did not, this
complaint was also waived. Id. But, even if he had preserved the matter, we would
consider the supposed error harmless, given his admission that he failed to report his
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arrest within 48 hours. That was enough to warrant the trial court’s decision, and it did
not involve the legitimacy of the stop for which the video could be relevant.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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