*1 324
Seale,
302.
Howell argues, further with citations to litany of supplemental reply cases its
brief, right appeal is to be
liberally construed under our statutes and See, e.g., Empire
rules. Hamilton v. Gas Co.,
& Fuel 134 Tex. 110 S.W.2d 561, (1937); Ingram, v. Smelcher SIMPSON, Appellant, Arthur Lee 180, (Tex.Civ.App. — Fort n.r.e.). 1956, Worth just writ refd As v. noted, however, we find the language of Texas, Appellee. STATE legislature Thus, unambiguous. there nothing is for us to liberally construe No. 14-99-00248-CR. favor of Howell because the legislature has denied it a right appeal. Texas, Appeals Court (14th Dist.).
Despite holding, our Houston requests Howell us to address its contentions that county Oct. 2000. judgment court at law is void. Howell argues that the small claims court lacked and,
jurisdiction over this case because the
county appellate jurisdiction court at law’s derivative, county
is court at law also jurisdiction.
lacked These contentions
may may not have merit. But without
subject jurisdiction matter over Howell’s appeal,
direct we cannot address the void- arguments proceeding.5
ness this
Davis,
Finally, requests Aerial that we filing ap
sanction Howell for frivolous Tex.R.App.P.
peal. Although we agreed concerning jur
have with Aerial its arguments,
isdictional Court has
previously statutory resolved the conflict 28.053(d) govern-
between section Hernandez, (Tex legal remedy. 5. Howell is not without a If void, county judgment denied). court at law it .App. writ Antonio — San See, may collaterally. e.g., be attacked Glunz *3 Greene, Houston, appel- Phillip S. lants. Anahuac, Bradley, P.
Daniel lees. FOWLER,
Panel consists of Justices EDELMAN, and BAIRD.* MAJORITY OPINION EDELMAN, Justice. convic- Simpson appeals
Arthur Lee deliver possession tion for intent to grounds of cocaine on the grams over 400 denying trial court erred * Judge sitting by assignment. Former Charles F. Baird Carmouche, (1) he was record. See suppress motion because: once 327-28. detained without completed had arresting officer Suspicion of Reasonable Existence (2) stop; the initial traffic investigation of his vehicle consent to search point argues error first Appellant’s freely voluntarily given; investigating finished that after Chavez search inside plate light, officer’s out license detain- the burned scope in his trunk exceeded
spare tire of his ing further a violation by requested the officer. rights Amendment because Chavez Fourth affirm. We no reasonable activity. in any
was involved *4 Background stop A traffic is a deten routine thus, must be reasonable under tion and traveling along 10 one While Interstate and Texas Constitutions. the United States evening, appellant stopped by Texas State, 240, v. 947 245 See Davis S.W.2d Pablo because Highway patrolman reasonable, (Tex.Crim.App.1997). To be light appellant’s rear li- illuminating the temporary and last no stop traffic must be plate out. Before cense was burned con- necessary the longer than is to effectuate cluding stop, ap- traffic asked this v. purpose stop. Royer, See Florida vehicle, pellant if he could his and search 491, 500, 1319, 75 460 103 U.S. S.Ct. affirmatively. nodded head his (1983); Davis, at L.Ed.2d 229 appel- spare Inside the tire in the trunk of 243, stop, an During 245. a traffic officer car, duct-taped lant’s Chavez discovered a identification, may valid driver’s demand Appellant containing box cocaine. was in- license, from the proof and of insurance possession dicted for with intent to deliver driver, outstanding may also check for Appellant grams over 400 of cocaine. Davis, 947 at 245 n. warrants. See S.W.2d filed, denied, trial and the court a motion However, stop once the reason the suppress in the evidence found satisfied, may be stop has been not plea Appellant guilty lant’s car. entered a fishing expedition used as a for unrelated years and was im- sentenced seventeen Robinette, activity. criminal See Ohio v. prisonment. 33, 41, 417, 136 519 117 S.Ct. L.Ed.2d U.S. J., (Ginsburg, concurring); 347 Standard of Review Davis, Rather, any 947 at 243. S.W.2d must ar- reviewing a trial continued detention be based on court’s deci which, suppress, give together on sion a motion to we ticulable facts taken facts, from those almost total deference to the trial court’s rational inferences a man caution in the determination historical facts and mixed warrant of reasonable justi law on questions of and fact which turn an belief that continued detention was demeanor, fied, ie., credibility and that or would evaluation of but the detainee was law, application engaged activity. its such as soon criminal we review on be Davis, suspicion 947 at 244-45. In other questions of reasonable S.W.2d cause, words, purpose original de v. once the probable novo. See Ornelas States, 697-99, effectuated, 690, any contin 517 116 detention has been United U.S. (1996); supported by 911 ued must be some 134 L.Ed.2d Car detention (Tex. is, State, suspicion, 10 327 reasonable that mouche v. S.W.3d additional Where, here, ordinary that is oc Crim.App.2000). something as a trial out of un and some indication that the explicit findings curring court makes no of histori fact, findings made circumstance is related crime. presume cal we it nec usual Davis, (holding 244-45 essary long 947 support ruling its as as See supported by officers determined driver implied those finds are after intoxicated, was not testimony, continued detention of played. According to Chavez’s driver and search of his car his without which coincided with the events reflected video, sup- pulled appellant consent was he be- unreasonable where over appellant’s taillamp ported by cause other burned out.1 activity). put patrol Chavez testified that as he park, appellant immediately car in out got suspi To establish reasonable car, placed keys of his pocket, cion, an must be officer able to articulate patrol and walked toward the car. This something than an un- more inchoate and suspicions raised Chavez’s ex- because his particularized suspicion or hunch. See perience people had been stopped Sokolow, U.S. U.S. 109 S.Ct. night usually are get “hesitant” to out of (1989). However, L.Ed.2d their cars. He thought behavior indi- fact that an officer does not have mind was trying cated to hide justify the reasons that the action does not something. Chavez then asked invalidate as circum long the action as the Appellant his driver’s pulled license. Robinette, justify stances it. See 117 S.Ct. pocket, license gave out of his it to at 420-21. The determination of reason then, request, Chavez and also without able be must based on common *5 Chavez gave Although his insurance card. judgments sense and hu inferences about video, in clearly it is not visible Chavez Wardlow, man behavior. See Illinois v. appellant that shaking testified was and 528 U.S. 120 S.Ct. nervous, very even his dropping seemed (2000). L.Ed.2d 570 insurance card. Robinette, Supreme In the U.S. in appellant’s Chavez then radioed Court held that a continued detention and driver’s license to check number for out- request to a following search detainee’s car standing warrants. While awaiting reasonable, traffic stop a con was where check, on information the license Chavez given, was though sent even no circum questioned appellant trip about his and stances were noted that would have consti he employed. where was Chavez testi- tuted reasonable of criminal that appellant’s fied answers were Robinette, activity. See 420- “blurted” out and un- appellant seemed Davis, contrast, in By of Court in responses. sure his further This Appeals Criminal found the officers’ con suspicions. raised Chavez’s Chavez then where, duct detain unreasonable after the appellant history his asked about arrest refused ee to consent to a search of his appellant responded that had and he car, the officers nevertheless detained the in- theft. been arrested once for Chavez occupants vehicle and thus its had no who appellant he was for waiting formed that Davis, depart. other means to the information on the license check but interpret at 241. We Davis and clear, everything that if came back Cha- may Robinette to mean that an officer a give appellant vez written warn- would request consent search a after a vehicle taillamp. At ing for defective this may stop traffic but not detain the occu point, tape the counter on the video re- pants or vehicle further if such four minutes approximately flected refused unless reasonable of elapsed pulled had appellant since activity criminal some exists. his car over. case, ap Approximately eight both and minutes after the Chavez pellant suppression stop began, testified at the hear received the license Chavez ing, tape stop report and a video was check information. The indicated (Vernon 1999). taillamp illuminating dispute Appellant 1. Failure to a does not have plate rear license is a traffic stop permissible. violation. that the initial traffic 547.322(f) §§ 547.004, Tex.Trans.Code Ann. vousness;2 of his and misstatement although license was valid warrants, ap- totality these fac- outstanding history. and had no of he tors, two ad- pellant’s criminal record reflected with commonsense infer- combined battery behavior, charges, aggravated suggest ditional human ences about burglary. and Chavez testified aggravated di- nervously attempting appellant was suspicion in his that this further aroused appel- away from Chavez’s attention rect telling “not truth appellant history. car well as his criminal lant’s as Immediately, Chavez some reason.” turn, This, sus- supported a reasonable car, approached patrol appellant, exited his illegal could have picion that him had anything illegal and if he asked justified a continued items his car and weapons, drugs, his as or contra- car such point appellant’s first Because detention.3 responded that did Appellant band. he fails to establish that his of error thus not. then asked if request a search of car detention to “every- consent to search his car rights, it Fourth Amendment violated his Initially, thing within the vehicle.” is overruled. Chavez, away tak- began walking lant from ing couple steps, but Chavez called Consent him if again back asked argues Appellant’s point of error second Ap- a search his car. would consent to head, response that the nod pellant responded by nodding his af- head ap- for consent to search request Chavez’s firmatively. point, At this had nei- car, to show pellant’s was not sufficient citation, warning ther nor written consent- freely voluntarily that he had ánd returned license or insurance to a ed search. card, and the video reflected that recorder *6 approximately elapsed nine minutes had question is a of Voluntariness stop began. since the all circum fact to be determined from the Robinette, 40, 117 519 stances. See U.S. above, interpret
As noted
we
Robinette
voluntary,
In order to be
the
S.Ct. 417.
and Davis to allow Chavez to have asked
by
must not be coerced
covert
consent
to
search
vehicle.
force,
threat,
However,
not,
implied
or otherwise. See
they
even if
we
do
believe
Carmouche,
The
volves mixed
of law and fact.
would conclude that
the consent
State,
Stephenson
900, pertained
itself,
only
v.
494
“to the vehicle
not to
Therefore,
anything inside of the
(Tex.Crim.App.1973).
vehicle.”
we
afford almost total deference to the trial
measuring
The
standard
courts’
of such questions
determinations
scope
the
suspect’s
consent under the
they
where
are
on an
based
evaluation of Fourth
“objective”
Amendment
that of
credibility and demeanor and
sup
are
i.e.,
reasonableness,
typical
what the
rea
ported by the record. See Maldonado v.
person
by
sonable
have
understood
State,
247 (Tex.Crim.App.
the
the
exchange between the officer and
1999).
Jimeno,
suspect.
See Florida
500 U.S.
L.Ed.2d
case,
In this
Chavez’s testimony
(1991).
of a
scope
search is
de
also
tape clearly
and the video
indicated by
object,
fined
expressed
its
and a sus
affirmatively
nodded
to Chavez’s
pect
scope
is free to delimit the
request
to search
car. During
search to which he consents.
See id.
suppression
cross-examination at the
hear
251-52,
argues that because Chavez’s second re-
mind,
my
In
this case boils down
quest
only
appel-
consent referred
appellant’s
whether
continued detention
lant’s “vehicle” and did not include the
trooper
was
reasonable
after
Chavez
it,”
phrase
everything
“and
as used in
appellant
learned
had a more extensive
objectively
his first request,
initially
an
reasonable
arrest record
stated.1 If the
than
cross-examination,
vehicle,
appellant’s
On
placed
1.
Chavez testified that
exited his
driver’s
arrests,
learning
proof
after
of the two additional
he
license and
insurance on the
hood
turn,
This,
reasonable,
supported a reasonable
the
was
continued detention
have ille-
appellant
search the vehicle was valid.
could
consent to
However, if
was
the continued detention
justified a con-
and
in his car
gal items
unreasonable,
and
consent was tainted
the
tinued detention.
in failing
suppress
the
court
trial
erred
swpra at 329.
the
the
of that search. For
follow-
fruits
reasons, I
was
ing
the
believe
detention
the video
by
majority,
the
on
As noted
unreasonable.
if the license check
stated
tape, Chavez
investigative
To
an
determine whether
clear,
would be issued
back
came
under the Fourth
detention
reasonable
free to
warning ticket and
be
was
inquiry
a dual
is made:
Amendment
state-
When this
supra
leave. See
328.2
justified
inception;
its
detention
made,
one,
and three
was
factors
two
ment
and,
so,
reasonably
if
was the detention
appellant had exited
already
had
occurred:
scope
to the circumstances
related
placed
keys
in his
his
and
vehicle
Ohio,
Terry
justified the detention. See
already blurted his
pocket; appellant had
1, 19-20,
1868, 1879, 20
U.S.
respons-
in some
answers and was unsure
(1968).
addressing
L.Ed.2d 889
es;3
already appeared
and
had
majority
prong,
first
states:
these fac-
nervous.4 Chavez determined
sus-
believe Chavez had reasonable
[W]e
were not sufficient to establish rea-
tors
(1)
picion
appellant’s:
to do
on
so based
to detain
be-
sonable
upon being
immediate exit of his car
investigation
they
yond
traffic
because
stopped
putting
keys
pock-
and
his
his
when
by
been
he
considered
et;
abrupt and
unsure answers
a warning
ticket would be
announced
(3) nervousness;
questions;
Chavez’s
if the
the detention would end
issued and
(4) misstatement of
criminal his-
an addi-
dispatcher
give
did
factors,
tory.
totality
com-
these
supra
appellant.
to hold
tional reason
bined
commonsense inferences
Therefore,
determinative factor
at 328.
behavior,
ap-
suggest
about human
detention was Chavez
continued
pellant
nervously attempting
to di-
aggra-
learning
arrests for
away
rect
attention
from
Chavez’s
history.
burglary.5
battery
aggravated
lant’s car as well as his criminal
vated
recog
investiga-
"Our
also
patrol
vehicle and
an
Court stated:
cases have
initiated
nervous,
is a
secondary
tion which was
and unrelated to
nized that
evasive behavior
plate light.
determining
pertinent
license
factor in
phrase
suspicion.” From the use of the
"a
Additionally,
"I
Chavez testified:
advised
pertinent
Court treats both ner
factor” the
[appellant]
waiting
for the
that I
returns
single
behavior as a
vousness and evasive
everything
on
driver’s license and in fact
if
*8
suspicion.
determining
in
factor
reasonable
having
valid
came back clear
a
driver's
recognized
"nervous
And this court has
that
going
that he was
to receive a written
license
grounds
suspi
is
a
for
ness
not
reasonable
plate lamp.”
warning
a
for
defective license
523,
State, 965 S.W.2d
cion” See Munera v.
1997,
(Tex.App.
[14th Dist.]
531
— Houston
questions were
3. Chavez admitted that these
Indeed,
ref'd),
pet.
cited
and cases
therein.
investiga-
not relevant to the traffic offense
that it
common
even Chavez testified
tion.
being
to
after
a
act nervous
for motorist
notes,
majority
nervous
As
stopped by peace
a
officer.
video. Never
is not obvious from the
ness
theless,
majority
Ward
cites Illinois v.
cross-examination,
following ex-
5.On
673,
119,
676,
low,
145
120 S.Ct.
U.S.
change occurred:
(2000),
proposition
L.Ed.2d 570
Q.
is, you
of the matter
believe
determining
The fact
can be a
nervousness
factor
you
history that
somebody has a criminal
if
suspicion.
supra at 329 n. 2.
reasonable
investigate
that reason
need to
further on
unprovoked flight
Court held
Wardlow
alone;
noticing
that correct?
upon
peace
give
could
rise
isn’t
officer
Yes,
holding, the
suspicion.
In so
A.
sir.
reasonable
Q. Well,
For
the continued detention to have
how would a criminal history
reasonable,
been
give you
these arrests must have
some reason to believe that
provided a man
may
of reasonable
there
be
caution with
contraband
a vehicle?
an articulable
appellant
reason
believe
necessarily contraband,
A. Not
but
orwas
soon would be
engaged
criminal
something
hiding.
that he’s
activity.
State,
Davis
947 S.W.2d
Q.
is,
The fact
you
matter
be-
(Tex.Crim.App.1997).
244-45
An ar-
somebody
lieve that
if
has a criminal
required
ticulable reason is
because a de
history
you
need to investigate fur-
tention
upon nothing
based
more than an
alone;
ther on that reason
isn’t that
unparticularized
inchoate and
suspicion or
correct?
good faith hunch is unreasonable under the
Yes,
A.
sir.
Fourth
Terry,
Amendment. See
392 U.S.
So,
Q.
that a
you
sufficient basis
1883, Davis,
S.Ct.
to initiate an additional
investigation
However,
at 243 nn. 3 and 4.
when Chavez
just
other than
traffic
violation?
was asked why he chose to continue the
Yes,
A.
sir.
detention, he was not able to
any
articulate
Again, Chavez
unable to
any
articulate
examination,
reason. On direct
reason to believe
was or soon
simply
learning
stated
of the undisclosed
engaged
would be
in criminal activity.
arrests “brought my
up
awareness
a little
The fact that
individual
prior
an
has a
bit that
telling
he’s not
the truth for some
arrest or
does not automatically
arrests
reason.” This is the closest Chavez came
provide
for detention.
stating
reason for the continued de
Otherwise, every person previously arrest-
Clearly,
explanation
tention.
does not
ed
subject
would be
to detention at the
provide an articulable reason to believe
peace
Moreover,
whim of a
officer.
our
appellant was
engaged
or soon would be
provides
law
the fact that someone
criminal activity, and the “for some rea
arrested,
more,
has been
without
does not
portion
son”
testimony
is nothing
give
rise to any
whatsoever.
more
an unparticularized
than
suspicion.
Even those who have been arrested and
cross-examination,
On
Chavez was asked
later formally charged with a criminal of-
why he
made
into
inquiry
crim-
fense
presumed
are
innocent. See Tex.
inal history:
38.03;
art.
In re
Code
CRImPROcAnn.
Winship, 397
Q.
U.S.
you
And
want to know whether or
(1970).6
1076-77,
two reasons. merely prop- stands for the narrow
binette that the Fourth Amendment does
osition require notify to peace officer he is before seek-
driver that free leave However,
ing consent search vehicle. knowledge
the Robinette Court noted was a right
of the refuse the consent determining
factor be considered in also,
voluntariness consent. See *10 State, 332-33
Carmouche