Andrew Shirley Jr. v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00119-CR
__________________
ANDREW SHIRLEY JR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 174th District Court
Harris County, Texas
Trial Cause No. 1599574
__________________________________________________________________
MEMORANDUM OPINION
In 2018, Appellant Andrew Shirley Jr. was indicted for possession of a
controlled substance, namely methamphetamine. 1 Shirley pleaded guilty pursuant to
a plea agreement, and the trial court deferred adjudication and placed Shirley on
community supervision for a period of three years. In July of 2020, the State filed a
motion to adjudicate Shirley’s guilt, alleging three violations of Shirley’s conditions
1
See Tex. Health & Safety Code Ann. § 481.115.
1
of community supervision. At the hearing on the motion to adjudicate, the State
announced it was abandoning two of the alleged violations 2 and only seeking
adjudication based on Shirley’s commission of the offense of evading arrest or
detention, and Shirley pleaded “not true.” After hearing evidence, the trial court
found that Shirley had violated the conditions of his community supervision as
alleged, adjudicated Shirley guilty, and sentenced him to imprisonment for nine
years. In one issue, Shirley challenges his adjudication of guilt and argues there was
no reasonable suspicion to support the traffic stop that precipitated his evasion of
arrest or detention. 3 We affirm.
Hearing on the Motion to Adjudicate
Testimony of Officer Christopher Pham
Officer Pham, with the Houston Police Department (HPD), testified that he
initiated a traffic stop on June 29, 2020, because the vehicle’s temporary plate “came
back expired[]” and the driver failed to use a turn signal. Pham agreed that another
officer, Officer Michael Falcone, had informed him the defendant had failed to make
a turn signal, and he relied on what Falcone had said, but he personally observed the
2
The alleged violations the State chose to abandon were possession of a
controlled substance with intent to deliver and a positive drug test for multiple
substances on two occasions.
3
Under an order issued by the Supreme Court of Texas, this case was
transferred to our Court from the Fourteenth Court of Appeals in Houston, Texas.
See Tex. Gov’t Code Ann. § 73.001.
2
expired license tag. Pham recalled that after he turned on his emergency lights, the
driver failed to stop for “about a quarter of a mile.” Pham testified that other marked
units were behind him in pursuit of Shirley. Pham testified as follows:
I initiated a traffic stop on a Buick. The Buick failed to stop for us with
our emergency lights on, evading from us, and ended up wrecking his
vehicle at a construction site. The driver got out of the vehicle after he
wrecked the vehicle and immediately evaded from me on foot.
...
After the vehicle crashed, I saw the driver jump out of the driver’s seat
and immediately evade into an apartment complex. I pursued him on
foot until he got to the far end of the complex where he tripped up trying
to jump over a water puddle. And I told him, “Stop, let me see your
hands.” He got on the ground and immediately gave up….
...
So[,] after he crashed the vehicle into a construction site, I saw the
driver get out of the driver’s seat and…evade from me on foot into an
apartment complex. I chased after him on foot for about 60 or 70 yards.
He tried to jump over a water puddle and slipped, and he fell on the
ground. I told him to stop, and I told him to show me his hands. That’s
when he gave up. I detained him at that point and brought him back to
the original scene.
According to Pham, Shirley then identified himself to Pham. Pham identified the
defendant as Shirley, the man he stopped that night.
On cross-examination, defense counsel questioned Pham about the lack of
probable cause for the stop in Pham’s offense report, and Pham replied that he
stopped Shirley because he failed to signal a lane change and because he had an
expired license tag. The temporary license tag had expired on May 27, 2020, and the
date of the offense was June 29, 2020. Defense counsel then asked whether the
Department of Public Safety had waived renewal of license tags because of the
3
coronavirus pandemic, and Pham replied, “I’m not sure, sir. I’m not sure of the
specifics.”
Testimony of Officer Michael Falcone and of Probation Officer Jesusa Goana
Officer Michael Falcone testified that he was a plainclothes undercover
officer assigned to the HPD Westside Division Tactical Unit. Falcone testified that
on June 29, 2020, he was conducting surveillance police work. The following
exchange occurred on examination by defense counsel:
[Defense counsel]: …Is your department stopping people for expired
tags during the pandemic given that the DPS has restrictions because of
COVID?
[Falcone]: Yes. We continued to stop people for expired registration.
[Defense counsel]: And is that something that you personally have
done, is stop people for expired registration?
[Falcone]: I’m in a plainclothes capacity, but I do call out expired
registration.
[Defense counsel]: Okay. And is your department issuing tickets for
expired registrations?
[Falcone]: I do not write tickets, sir, so I don’t know that answer at this
time.
[Defense counsel]: Okay. Do you know if your department was
stopping people for expired registrations in June of 2020?
[Falcone]: Yes, sir.
...
[Defense counsel]: Do you know if your department was issuing tickets
for expired registration in June of 2020?
4
[Falcone]: I don’t know if they were issuing tickets, sir. I’m in a
plainclothes capacity, so I do not do that.
Falcone notified the marked units of Shirley’s vehicle number and “paper tag[]” and
his failure to signal.
One of Shirley’s probation officers, Jesusa Goana, also testified that Shirley
was compliant with the terms of his community supervision “until he picked up the
law violation[,]” including possession with the intent to deliver and evading arrest
as well as two positive drug tests.
Closing Argument
After the close of evidence, the defense argued that there was no probable
cause for the traffic stop because, at the time of the alleged offense, DPS had
suspended enforcement against expired tags. In response, the State argued that
Officer Falcone had testified that HPD was still writing tickets for expired
registration. The trial court found that the State had met its burden of proof by a
preponderance of the evidence and further stated:
As it relates to the issue of whether this was a lawful detention or arrest,
the Court believes that the -- Officer Pham had at the bare minimum a
right to temporarily detain the defendant to investigate the issue as it
relates to the violation -- what appeared to be a violation of the traffic
laws as it relates to an expired registration. There was testimony from
Officer Falcone that they were still giving -- HPD was still writing
tickets for expired registration. So[,] at the very least, the officer had a
right to investigate this alleged violation for a temporary detention, and
so I believe that it was a lawful detention -- or attempt of a lawful
detention. So[,] I do find the State’s met their burden of proof by a
preponderance.
5
The trial court found that Shirley had violated the conditions of his community
supervision, adjudicated him guilty, and assessed punishment at nine years’
confinement.
Issue
The only issue Appellant raises on appeal is whether the record reflects that
the traffic stop was supported by reasonable suspicion. Appellant argues that the trial
court erred in adjudicating his guilt because the State failed to prove all the elements
of evading arrest or detention. He argues that the expired “tag did not supply
reasonable suspicion of criminal activity because there was no offense of driving
with an expired registration in June of 2020.” According to Appellant, the
registration laws were suspended by the governor in a press release on March 16,
2020. 4 Appellant argues that the Governor’s suspension of the registration laws had
the “force and effect” of law and therefore the State failed to prove that the attempted
detention was lawfully supported by reasonable suspicion.
According to the State, the Governor did not issue a “valid executive
proclamation, order, or regulation that is required to suspend a state statute.” The
State further contends that for a proclamation to be legally binding, it must be in
4
See Press Release, Greg Abbott, Office of the Texas Governor, Governor
Abbott Waives Certain Vehicle Registration, Titling, and Parking Placard
Regulations in Texas (March 16, 2020), https://gov.texas.gov/news/post/governor-
abbott-waives-certain-vehicle-registration-titling-and-parking-placard-regulations-
in-texas.
6
writing and filed with the Secretary of State. 5 Because the Governor’s press release
was not filed with the Secretary of State, the State argues it amounts to no more than
“a policy of prosecutorial discretion” and it did not suspend or change the law. 6
Standard of Review
We review a decision to adjudicate guilt in the same manner as we review a
decision to revoke community supervision—for abuse of discretion. 7 In a hearing to
revoke deferred adjudication, the State only needs to prove the violation of a
condition of probation by a preponderance of the evidence. 8 The evidence meets this
standard when the greater weight of the credible evidence creates a reasonable belief
5
Citing Williams v. State, 176 S.W.2d 177, 184 (Tex. Crim. App. 1943); In
re Expunction, 497 S.W.3d 505, 509 (Tex. App.—Houston [1st Dist.] 2016, no pet.);
Manor Casino v. State,34 S.W. 769, 770 (Tex. App.—Austin 1896, no writ).
6
Here, the appellate record does not reflect that Shirley argued to the trial
court that the Governor’s press release resulted in a suspension or change in the law.
Rather, Shirley only argued to the trial court that DPS had suspended enforcement
of expired tags. The trial court overruled that objection and found that the traffic stop
was a lawful detention. An appellant’s argument to the trial court must comport with
his argument on appeal. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App.
2014). We restrict our analysis to whether the traffic stop was supported by
reasonable suspicion. See id.7
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Tex.
Code Crim. Proc. Ann. art. 42A.108(b).
8
Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013); Rickels,
202 S.W.3d at 763-64.
7
that the defendant has violated a condition of his community supervision. 9 We must
examine the evidence in the light most favorable to the trial court’s order. 10
In determining whether the allegations in the motion to adjudicate are true,
the trial court is the sole trier of facts, the judge of the credibility of the witnesses,
and the arbiter of the weight to be given to the testimony. 11 It is within the province
of the trial court, as factfinder, to reconcile conflicts or contradictions in the
evidence, and we do not reverse the trial court if the conviction finds support in the
evidence. 12 The State only needs to establish one sufficient ground for revocation by
a preponderance of the evidence. 13
Reasonable Suspicion for a Traffic Stop
A traffic stop constitutes a seizure under the Fourth Amendment and must be
supported by reasonable suspicion that an individual was committing or had
committed a traffic violation. 14 “Reasonable suspicion exists if the officer has
specific, articulable facts that, when combined with rational inferences from those
9
Rickels, 202 S.W.3d at 763-64 (citing Scamardo v. State, 517 S.W.2d 293,
298 (Tex. Crim. App. 1974)).
10
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
11
Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Trevino v.
State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
12
See Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992); Shah v.
State, 403 S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
13
See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
14
Davis v. State, 947 S.W.2d 240, 242-45 (Tex. Crim. App. 1997) (citing
Terry v. Ohio, 392 U.S. 1, 19-20 (1968)).
8
facts, would lead him to reasonably conclude that a particular person actually is, has
been, or soon will be engaged in criminal activity.” 15 In determining whether a police
officer had reasonable suspicion to initiate a traffic stop, courts must consider the
totality of the circumstances and look solely to whether there was an objective basis
for the stop. 16
To support a reasonable suspicion, the articulable facts must show “‘that some
activity out of the ordinary has occurred, some suggestion to connect the detainee to
the unusual activity, and some indication that the unusual activity is related to
crime.’” 17 The applicable law does not require an actual violation but only that “the
officer reasonably believed a violation was in progress.”18 In determining whether
an officer’s suspicion was reasonable, we employ an objective standard: whether the
facts available to the officer at the moment of detention warrant a person of
reasonable caution to believe that the action taken was appropriate. 19 Driving with
expired registration violates multiple provisions of the transportation code. 20
15
Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007).
16
Id.17
Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011)
(quoting Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)).
18
Green v. State, 93 S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet.
ref’d); see also Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d).
19
See Terry, 392 U.S. at 21-22; Hernandez v. State, 983 S.W.2d 867, 869
(Tex. App.—Austin 1998, pet. ref’d) (citing Davis, 947 S.W.2d at 243).
20
See, e.g., Tex. Transp. Code Ann. §§ 502.040(a) (Registration Required;
General Rule), 502.407(a) (Operation of Vehicle with Expired License Plate),
9
Analysis
Shirley did not argue in the trial court that his vehicle registration was not
expired, nor does he make this argument on appeal. Shirley also did not argue in the
trial court that he did not evade arrest or detention, nor has he made this argument
on appeal.
Officer Pham testified that he made a traffic stop of Shirley in part for an
expired license tag. Pham also testified that the vehicle’s temporary license tag had
an expiration date of May 27, 2020, and he was not sure whether DPS had waived
renewal of license tags because of the pandemic. Officer Falcone testified that in
June 2020, HPD officers were still stopping people for expired registration, but
because he worked in a plainclothes assignment, he did not know whether HPD was
issuing tickets for an expired registration.
The testimony of Officers Pham and Falcone constitutes evidence “‘that some
activity out of the ordinary ha[d] occurred, some suggestion to connect the detainee
to the unusual activity, and some indication that the unusual activity [was] related to
[a] crime.’” 21 The officers’ testimony reflects that they “reasonably believed a
violation was in progress.”22 Viewing the evidence in the light most favorable to the
502.473(a) (Operation of Vehicle Without Registration Insignia), 504.943
(Operation of Vehicle Without License Plate).
21
See Derichsweiler, 348 S.W.3d at 916 (quoting Meeks, 653 S.W.2d at 12).
22
See Green, 93 S.W.3d at 545; Cook, 63 S.W.3d at 929.
10
trial court’s judgment, we conclude that the trial court did not abuse its discretion in
concluding that there was reasonable suspicion for the traffic stop. Additionally, the
defendant did not challenge at trial that he failed to stop and that he evaded arrest.
We conclude that the State proved by a preponderance of the evidence that Shirley
committed the offense of evading arrest or detention. 23 The trial court did not abuse
its discretion in adjudicating Shirley’s guilt.
We overrule Appellant’s issue, and we affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on March 28, 2022
Opinion Delivered April 13, 2022
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
23
See Hacker, 389 S.W.3d at 864-65; Garrett, 619 S.W.2d at 174.
11