Daniel Nader Haize v. State ( 2012 )

Opinion issued December 6, 2012.
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-11-00253-CR, 01-11-00254-CR, 01-11-00255-CR
———————————
DANIEL NADER HAIZE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case Nos. 1205375, 1207233, 1286077
MEMORANDUM OPINION
Appellant, Daniel Nader Haize, with an agreed punishment recommendation
from the State, pleaded guilty to the offense of possession of a controlled
substance, namely, gamma hydroxubutyrate (“GHB”),1 and, in accordance with the
plea agreement, the trial court assessed his punishment at confinement for four
years. The State also moved to adjudicate appellant’s guilt on the offenses of
aggravated assault with a deadly weapon2 and violation of a protective order,3 for
which appellant had been previously placed on community supervision. The trial
court granted the State’s motions to adjudicate guilt for both offenses and assessed
appellant’s punishment at confinement for eight years for each offense, with each
sentence to run concurrently. In two issues, appellant contends that the trial court
erred in denying his motion to suppress evidence and not holding an evidentiary
hearing on his motion for new trial.
We affirm.
Background
In 2009, appellant, with an agreed punishment recommendation from the
State, pleaded guilty to the offenses of aggravated assault with a deadly weapon
and violation of a protective order. Pursuant to his plea agreements in both cases,
1
See TEX. HEALTH AND SAFETY CODE ANN. §§ 481.002(5), 481.102(9),
481.112(a), (d) (West 2010); appellate cause no. 01-11-00255-CR; trial court
cause no. 1286077.
2
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011); appellate cause no. 01-11-
00253-CR; trial court cause no. 1205375.
3
See id. § 25.07(a) (West Supp. 2012); appellate cause no. 01-11-00254-CR; trial
court cause no. 1207233.
2
the trial court deferred adjudication of appellant’s guilt and placed him on
community supervision for four years.
On November 20, 2010, a Harris County grand jury issued a true bill of
indictment, accusing appellant of the offense of possession of a controlled
substance, namely GHB, weighing more than four grams but less than 200 grams.
The State then filed motions to adjudicate appellant’s guilt in the cases involving
the offenses of aggravated assault with a deadly weapon and violation of a
protective order, alleging that appellant had violated a term of his community
supervision, i.e., that he “[c]ommit no offense against the laws of this or any other
State or of the United States.” The State later amended both motions to further
allege that appellant had violated another term of his community supervision by
possessing a firearm. Appellant then filed a motion to suppress evidence in the
controlled-substance case.
At the hearing on appellant’s motion, Houston Police Department (“HPD”)
Officer J. Crawford testified that on November 20, 2010, he, along with Officer C.
Holloway, patrolled an area that was “known for selling drugs.” Crawford saw a
car driving “basically split down the middle” of Center Street, a two-way street.
The car travelled in the middle of the road for the “entire block” for approximately
“three to five seconds.” Crawford believed that the driver of the car could have
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been intoxicated because he was “driving on the wrong side of the road and could
very easily have caused an accident.”
Officer Crawford initiated a traffic stop of the car and approached appellant,
the driver of the car, while Officer Holloway approached the passenger’s side of
the car. Holloway then told Crawford that he saw a gun inside the car. When
Crawford positioned himself to see the gun, he also saw a “piece of a meth pipe”
sticking out. Both the gun and the pipe were in a pocket on the back of the
passenger’s seat. The handle of the gun was “facing the driver” and “[w]ithin
arm’s length” of him. Crawford then arrested appellant while Holloway placed the
passenger, Cara Gregory, into the back seat of their patrol car. Upon speaking with
appellant, Crawford could “smell alcohol on his breath.”
After the arrest, Crawford searched the trunk of appellant’s car, where he
saw a water bottle. When he picked up the water bottle, he noticed that the liquid
inside the bottle was “not as clear as water” and seemed “a lot heavier” and
“thicker” than water. From his experience, Crawford concluded that the liquid was
“probably” GHB, which he described as a “date rape drug.” Crawford then
returned to the patrol car and listened to an audio recording made of a conversation
between appellant and Gregory that occurred while they were waiting in the back
seat of the patrol car. From that recording, Crawford determined that appellant
possessed the bottle of GHB.
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On cross-examination, Officer Crawford explained that Officer Holloway, in
his offense report, characterized appellant’s traffic offense as “left of center.”
Crawford admitted that appellant was not “speeding” or “swerving” and did not
“almost cause an accident,” but he maintained that appellant was “driving on the
wrong side of the road” and “could possibly [have been] intoxicated.”
Officer Holloway testified that the officers initiated the traffic stop when
they saw appellant’s car “drive down the center stripe” for “approximately five
seconds.” Holloway saw that “half of his car was on the left side, half it was on
the right.” He explained that he characterized appellant’s traffic violation as
“[d]riving left of center” in his offense report to indicate that appellant was
“driving left of the center divider.” Holloway described the term “left of center” as
“police slang” for “not driving on the right side of the road.” On cross-
examination, Holloway admitted that a section of the Texas Transportation Code
contains an offense that refers to “driving to the left of center of roadway
limitations other than passing.” He, however, insisted that the officers initiated the
traffic stop of appellant for driving down the middle of the road.
After the hearing, the trial court denied appellant’s motion to suppress
evidence and adjudicated appellant’s guilt for the offenses of aggravated assault
with a deadly weapon and violation of a protective order. Appellant then pleaded
guilty to the offense of possession of a controlled substance.
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Motion to Suppress Evidence
In his second issue, appellant argues that the trial court erred in denying his
motion to suppress evidence because the seizure of the evidence from his car was
“based on an illegal traffic stop.” Appellant asserts that the evidence elicited
during the hearing failed to establish that Officers Crawford and Holloway saw
appellant commit a traffic violation, and, thus, “the whole encounter . . . could not
have been based upon reasonable suspicion.”
We review a ruling on a motion to suppress evidence for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We
give almost total deference to a trial court’s determination of historical facts,
especially if those determinations turn on witness credibility or demeanor, and
review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.
Crim. App. 2008). At a suppression hearing, a trial court is the sole and exclusive
trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d
278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe
or to disbelieve all or any part of a witnesses’ testimony. State v. Ross, 32 S.W.3d
853, 855 (Tex. Crim. App. 2000). Unless a trial court abuses its discretion in
making a finding not supported by the record, we will defer to the trial court’s fact
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findings and not disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77
(Tex. Crim. App. 1991).
A “stop” by a law enforcement officer “amounts to a sufficient intrusion on
an individual’s privacy to implicate the Fourth Amendment’s protections.”
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). However, it is
well-established that a law enforcement officer may stop and briefly detain a
person suspected of criminal activity on less information than is constitutionally
required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
1880 (1968); Carmouche, 10 S.W.3d at 328. In order to stop or briefly detain an
individual, an officer must be able to articulate something more than an “inchoate
and unparticularized suspicion or ‘hunch.’” Terry, 392 U.S. at 27, 88 S. Ct. at
1883. Instead, an officer must have “reasonable suspicion” that an individual is
violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Reasonable suspicion exists when the officer has some minimal level of objective
justification for making the stop, i.e., when the officer can “point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880; see
also Alabama v. White, 496 U.S. 325, 329–30, 110 S. Ct. 2412, 2416 (1990). We
disregard the subjective belief of the officer in our reasonable suspicion analysis
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and consider the totality of the circumstances objectively. Ford, 158 S.W.3d at
492–93.
It is well-established that an officer may lawfully stop an individual for a
traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).
The Texas Code of Transportation provides, in pertinent part, that,
An operator on a roadway of sufficient width shall drive on the right
half of the roadway, unless:
(1) the operator is passing another vehicle;
(2) an obstruction necessitates moving the vehicle left of the
center of the roadway . . .[;]
(3) the operator is on a roadway divided into three marked
lanes for traffic; or
(4) the operator is on a roadway restricted to one-way traffic.
TEX. TRANSP. CODE ANN. § 545.051(a) (West 2011). It further provides that,
An operator may not drive to the left side of the roadway if the operator is:
(1) approaching within 100 feet of an intersection or railroad
grade crossing in a municipality. . . .
Id. § 545.056(a)(1) (West 2011).
At the hearing on appellant’s motion to suppress evidence, Officer Crawford
explained that Center Street, where he saw appellant driving his car, consists of
“one lane going one way and one lane going the other way.” Crawford saw
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appellant driving his car “basically split down the middle . . . of the road” for an
“entire block.” Appellant drove in that manner for “probably three to five
seconds” until he made a right turn. Officer Holloway further explained that if the
yellow-line divider was a “plane,” it would have been “chopping the car in two.”
Holloway noted that appellant drove down the middle of the road for
approximately “five seconds” before the officers initiated the traffic stop.
Officer Holloway testified that he wrote in his offense report that appellant
was driving “left of center” because it is “police slang” for “not driving on the right
side of the road.” Holloway identified such driving as a violation of section
545.051, which requires the operator of a motor vehicle to drive on the right half of
the roadway in lieu of certain exceptions. On cross-examination, Holloway
admitted that section 545.056 of the Texas Transportation Code is entitled
“Driving to Left of Center of Roadway,” but he maintained that the officers
initiated the traffic stop for a violation of section 545.051.
At the conclusion of the hearing, the trial court found that “the officers did
have probable cause to make the stop” under section 545.051 and there was no
evidence regarding any of the exceptions to section 545.051. The trial court
further found that the officers had reasonable suspicion to stop appellant under
545.056 because “the officers described him driving in the center until he got up to
the stop sign.”
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Appellant argues that the trial court erred in concluding that the officers had
reasonable suspicion to initiate the traffic stop because there were no indications
that he was “travelling in an unsafe manner.” In support of this argument,
appellant relies on Hernandez v. State, 983 S.W.2d 867 (Tex. Crim. App. 1998)
and Unites States v. Raney, 633 F.3d 385 (5th Cir. 2011). In Hernandez, police
officers believed that the defendant had committed a violation of Transportation
Code section 545.060(a), which provides than an operator on a roadway “shall
drive as nearly as practical entirely within a single lane” and “may not move from
the lane unless that movement can be made safely.” 983 S.W.2d at 871 (quoting
TEX. TRANSP. CODE ANN. § 545.060(a) (West 1997)). The court noted that the
language of the statute indicated that a violation of the section occurs “only when a
vehicle fails to stay within its lane and such movement is not safe or is not made
safely.” Id. (emphasis in original). The court held that the State did not carry its
burden to prove that the defendant violated section 545.060 because the police
officer’s testimony was that the defendant had “drift[ed]” slowly into the adjacent
lane. Id. at 869, 872.
Here, however, unlike the statute at issue in Hernandez, neither section
545.051 nor section 545.056 includes an exception for vehicle movements made
“safely.” See Johnson v. State, 365 S.W.3d 484, 489 (Tex. App.–—Tyler 2012, no
pet.) (stating that, because section 545.051(a) “does not contain an ‘unless the
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movement can be made safely’ exception,” whether defendant “could safely cross
the center line is irrelevant”); Ray v. State, No. 14-03-00610-CR, 2004 WL
794517, at *1 (Tex. App.—Houston [14th Dist.] Apr. 15, 2004, no pet.) (mem. op.)
(holding that testimony of police officer that defendant “traveled on the wrong side
of [the street], stopped . . ., then traveled in reverse on the wrong side for almost an
entire block” constituted a violation of section 545.051). Thus, the testimony of
Officers Crawford and Holloway that appellant was driving “down the middle of
the road” for “an entire block” on a two-way street, immediately before turning at a
stop sign, was sufficient to support a conclusion that appellant had violated
sections 545.051 and 545.056.
In Raney, police officers testified that they initiated a traffic stop pursuant to
section 545.051. 633 F.3d at 390. Police officers were “settling disturbances
stemming from Hurricane Ike-related gasoline shortages” at a gas station when the
defendant crossed his car into the northbound lane of traffic. Id. at 388. The
southbound lane in which the defendant’s car had been traveling was “entirely
blocked” by cars attempting to turn into the gas station. Id. at 390. When the
defendant entered the northbound lane, a police officer signaled for him to pull
over, and the defendant “immediately complied.” Id. at 388. The government
“essentially concede[d]” that the defendant did not violate section 545.051. Id. at
390. And the court noted that the cars “entirely block[ing]” the southbound lane of
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traffic may have constituted “an obstruction” that necessitated the defendant
moving his car left of the center of the roadway, one of the exceptions provided in
section 545.051. Id; see also TEX. TRANSP. CODE ANN. § 545.051(a)(2).
Here, however, Officer Crawford testified that there were no “obstructions”
in the roadway and appellant was not attempting “to pass any slower vehicles.”
Likewise, Officer Holloway testified that he saw no “physical obstructions”
forcing appellant to move to the center of the roadway and appellant did not pass
any cars. Furthermore, it is undisputed that Center Street is a two-lane street not
restricted to one-way traffic. Thus, unlike in Raney, there is evidence in the instant
record from which the trial court could have concluded that none of the exceptions
in section 545.051(a) applied. And the trial court specifically stated that there was
no evidence of any obstruction as discussed in section 545.051(a).
Officers Crawford and Holloway’s testimony that appellant drove down the
middle of a two-way street for “an entire block” was sufficient for the trial court to
conclude that they had a “reasonable suspicion” that appellant had committed a
traffic violation. See Ford, 158 S.W.3d at 492. Accordingly, we hold that the trial
court did not abuse its discretion in denying appellant’s motion to suppress
evidence.
We overrule appellant’s second issue.
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Motion for New Trial
In his first issue, appellant argues that the trial court erred in not holding an
evidentiary hearing on his motion for new trial because “the court should have
conducted a further review of the arresting officers and their relationship with the
prosecuting attorney” to determine “if the prosecutor had coached the officers” for
their testimony.
We review a trial court’s denial of a hearing on a new-trial motion for an
abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).
The purposes of a new-trial hearing are (1) to determine whether the case should
be retried or (2) to complete the record for presenting issues on appeal. Hobbs v.
State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). There is not an absolute right
to such a hearing. Id. However, a trial court abuses its discretion in not holding a
hearing if the new-trial motion and accompanying affidavits (1) raise matters that
are not determinable from the record and (2) establish reasonable grounds showing
that the defendant could potentially be entitled to relief. Id. A trial court cannot be
said to have abused its discretion in denying a motion for new trial on a basis that
was not presented to it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App.
2005).
Appellant argues that a “claim of prosecutorial misconduct may be raised on
a motion for new trial” and “[h]olding a hearing on a motion for new trial is . . .
13
necessary to complete the record for an allegation of prosecutorial misconduct.”
See Ex Parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997); Gaitan v.
State, 905 S.W.2d 703, 706 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). In
his motion for new trial, however, appellant raised three “Grounds For Granting A
New Trial,” asserting that,
1. The trial court erred in denying [appellant’s] motion to suppress
evidence.
2. The evidence was insufficient to support the trial court’s
finding that the State proved the new law violations as set forth
in the State’s motions to adjudicate defendant’s guilt.
3. Defendant’s guilty plea in cause number 1286077 was
involuntary.
Appellant simply did not raise a claim of prosecutorial misconduct to the trial court
in his motion for new trial. Although appellant asserts that he “raised the issue of
possible misconduct during the suppression hearing,” there is no mention of
prosecutorial misconduct in either his motion for new trial or the supporting
affidavits of appellant and his attorney. We cannot conclude that the trial court
abused its discretion in not holding an evidentiary hearing on a motion for new
trial on a ground that was not presented to the trial court. See Keeter, 175 S.W.3d
at 759–61 (holding that defendant did not preserve Brady claim for appellate
review when it was not raised in his motion for new trial or during motion for new
14
trial proceedings). Accordingly, we hold that appellant has not preserved his
complaint for review. See id.; TEX. R. APP. P. 33.1(a)(2).
We overrule appellant’s first issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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