557 So. 2d 1330 | Ala. Crim. App. | 1989
The appellant, Leroy Gradford, Jr., was convicted, in the municipal court of the City of Huntsville, of driving a motor vehicle while under the influence of alcohol, in violation of Huntsville Municipal Ordinance 18-1 and §
The City's evidence tended to show that on the evening of May 26, 1988, Officer Michael Young of the Huntsville Police Department observed the appellant travelling east on Oakwood Avenue in Huntsville, Alabama. Officer Young followed the appellant for approximately one-half mile, and in that distance he observed the appellant's vehicle cross over the center line three or four times. Officer Young stopped the appellant and asked him to produce his driver's license. The appellant obeyed the officer's request, but fumbled as he did so. At that time, Officer Young noticed the odor of alcohol coming from the appellant's vehicle, so he asked the appellant to step out of the vehicle. As the appellant did so, Officer Young noticed that the appellant was unsteady on his feet and had very red, glassy eyes.
Officer Young administered five field sobriety tests on the appellant, including the horizontal gaze nystagmus test, the one-leg stand test, the finger-to-nose test, the Romberg alphabet test, and the walk-and-turn test. The appellant failed all of the tests. Officer Young then placed the appellant under arrest for driving under the influence of alcohol and transported him to the Huntsville city jail. There he was given a breath test on the Intoxilizer 5000 breath analysis machine. The results of the test indicated that the appellant had a blood alcohol content of .14%.
The appellant raises four issues on appeal.
Section
"A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."
Contrary to the appellant's contention that there was no "probable cause" for the initial stop, it is apparent that there was. Officer Young observed the appellant's vehicle cross over the center line onto the wrong side of the road three or four times. This was sufficient. Thus, the trial court correctly denied the appellant's motion to suppress and his motion to dismiss.
The appellant was arrested on March 26, 1988. He was tried and found guilty in municipal court on August 5, 1988. An appeal was taken on the same day. Thereafter, an information was filed by the City of Huntsville. We are unable to determine the date the information was filed, since a copy does not appear in the record. However, references to the information filed by the City of Huntsville are made in various motions and submissions filed by the appellant on September 21 and 23, 1988. In response to the appellant's motion of September 23, 1988, requesting that his case be dismissed because of the City's alleged failure to adequately inform him of the offense with which he was charged, the City of Huntsville filed a more detailed complaint in circuit court on October 7, 1988. The appellant received a copy of the complaint on October 11, 1988. He was tried and found guilty by a jury on March 9, 1989, approximately five months after receipt of the formal complaint.
Although the appellant contends that the information filed against him was not timely filed, his contention is not supported by the record. Indeed, the record is silent as to this contention, as no copy of the information is contained in the record before us. As our Supreme Court stated, inRobinson v. State,
See also Montgomery v. State,"A reviewing court cannot predicate error on matters not shown by the record. Watson v. State,
398 So.2d 320 (Ala.Cr.App. 1980), cert. den.,398 So.2d 332 (Ala. 1981). Indeed, a silent record supports a judgment. Robertson v. State,29 Ala. App. 399 ,197 So. 73 (1940). It is the appellant's duty to file a correct record. Tyus v. State,347 So.2d 1377 (Ala.Cr.App. 1977), cert. den.,347 So.2d 1384 (Ala. 1977); Rushing v. State,40 Ala. App. 361 ,113 So.2d 527 (1959)."
It is well settled that the city's failure to file the complaint with the circuit court within 15 days of the appeal, as required by §
Temporary Rule 14, Alabama Rules of Criminal Procedure, states as follows: "No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict. . . ." The appellant has failed to preserve this issue for review, since he never objected to the trial court's oral charge. See Cox v. State,
This court, in Draime v. State,
Appellant received a fair trial. The judgment of the circuit court is hereby affirmed.
AFFIRMED.
All the Judges concur.