Kevin Patrick Doyle v. State

Opinion issued June 3, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00275-CR

KEVIN PATRICK DOYLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1382087-A

CONCURRING OPINION

The majority erroneously concludes that this Court did not err in previously holding that the trial court did not abuse its discretion in denying the motion to suppress evidence of appellant, Kevin Patrick Doyle, in the underlying case in which appellant was convicted of the offense of driving while intoxicated. See Doyle v. State, 265 S.W.3d 28, 32 (Tex. App.—Houston [1st Dist.] 2008 pet. ref’d).  However, because no authority supports appellant’s contention that he was denied due process by this Court’s error, I concur in the judgment.  

At the hearing on appellant’s motion to suppress evidence, the State specifically argued that the police officer who arrested appellant had reasonable suspicion to initially detain him because the officer saw him violate section 545.060 of the Texas Transportation Code, which requires one to drive one’s car “as nearly as practical entirely within a single lane” when the roadway is “divided into two or more clearly marked lanes for traffic.”  Id., Tex. Transp. Code Ann. § 545.060 (Vernon 1999).  The officer specifically testified that he “stopped appellant because he weaved into the opposing lane of traffic.” Doyle, 265 S.W.3d at 32.  And, the trial court specifically concluded that the officer had “reasonable suspicion that appellant committed a traffic violation, namely a violation of Transportation Code section 545.060.”  Id.

The problem, as pointed out by this Court, with the trial court’s conclusion is that appellant could not possibly have violated section 545.060 because the officer had also testified that the street in question “did not have clearly marked lanes.”  Id.;  see Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. App. 2009) (when reviewing trial court’s decision on motion to suppress, appellate court “afford[s] almost total deference” to trial court’s findings of facts” when “based on an evaluation of credibility and demeanor,” if the evidence supports those findings).

When “on appeal the State argued that section 545.051 of the Transportation Code justified the stop,” our task became to determine if the evidence, viewed in the light most favorable to the trial court’s ruling and irrespective of the officer’s subjective intent, supported an implied finding of an objective basis for reasonable suspicion for the officer to have stopped appellant.  Doyle, 265 S.W.3d at 32; see Tex. Transp. Code Ann. § 545.051(a) (Vernon 1999); State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006) (“appellate court implies the necessary fact findings that would support the trial court’s ruling if the evidence (viewed in the light most favorable to the trial court’s ruling) supports these implied fact findings”). Reasonable suspicion is supported by the record only when the record contains testimony including “specific, articulable facts” that would have led the officer to reasonably conclude that a person had engaged or was about to engage in criminal activity.  Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). 

This Court agreed with the State and concluded that the officer “had reasonable suspicion that appellant had violated section 545.051.”  Doyle, 265 S.W.3d at 32.  However, section 545.051 requires a driver “on a roadway of sufficient width [to] drive on the right half of the roadway,” unless the driver is passing or avoiding an obstruction, but still yields the right of way to an oncoming car in the unobstructed portion of the roadway.  Tex. Transp. Code Ann. § 545.051(a) (emphasis added).  At the hearing on appellant’s motion, the officer offered no “specific, articulable facts” that the roadway in question was of “sufficient width” to provide reasonable suspicion that appellant was not driving on the “right half of the roadway” or, in trying to avoid a “parked car,” appellant failed to yield the unobstructed portion of the roadway to the officer’s oncoming car. Accordingly, this Court erred in holding that the trial court did not abuse its discretion in denying appellant’s motion.  Doyle, 265 S.W.3d at 32

Nevertheless, no existing authority supports appellant’s contention that “the trial court erred in holding that [this Court] did not violate appellant’s federal constitutional right to due process of law in affirming the trial court’s incorrect ruling on his motion to suppress evidence, based on a legal theory asserted by the State for the first time on appeal and not supported by the record.”

Appellant asserts that this Court’s erroneous holding denied him the opportunity in the trial court to contest whether specific articulable facts would have supported an implied finding of an objective basis for reasonable suspicion for the officer to have stopped him.  Also, as noted by appellant, had the issue been properly presented below, because his testimony contradicted that of the police officer, he would have been entitled to have the jury instructed on and decide the issue.  See Tex. Code Crim. Pro. Ann. art. 38.23 (Vernon 2005). These points have merit and are well taken. 

However, the authorities cited by appellant do not support his assertion that he is entitled to habeas corpus relief.  Rather, the cases cited by him involve equitable estoppel and the erroneous affirmance by appellate courts of jury verdicts of guilty on legal or factual bases not pleaded at trial.  See Dunn v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 2194 (1979) (“To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.”); Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 517 (1948) (“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.”); Schmidt v. State, 278 S.W.3d 353, 358 (Tex. Crim. App. 2009) (citing to New Hampshire v. Maine, 532 U.S. 742, 749–51, 121 S. Ct. 1808 (2001) (“equitable rule of judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase”); Wooley v. State, 273 S.W.3d 260, 268–72 (Tex. Crim. App. 2008) (appellant’s due process rights violated when court of appeals affirmed conviction under theory not submitted to jury); Malik v. State, 953 S.W.2d 234, 238 n.3 (Tex. Crim. App. 1997) (“due process prevents an appellate court from affirming a conviction based upon legal and factual grounds that were not submitted to the jury, . . . [but] . . . due process is [not] necessarily violated by affirming a conviction in which the jury charge contains extra, unnecessary elements that are not supported by the evidence”) (internal citations omitted).

Moreover, habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.  Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007).  Consequently, habeas corpus may not be used to assert claims that could have been asserted on direct appeal.  Id.  Appellant could and did seek correction of this Court’s error in the Texas Court of Criminal Appeals, which, in its discretion, declined to review the matter.  Thus, appellant had an adequate remedy at law.  See id.  

Accordingly, I concur in the judgment of this Court.

                                                          Terry Jennings

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Justice Jennings, concurring.

Publish.  See Tex. R. App. P. 47.2(b).