Jeffrey A. Bryan v. The State of Texas--Appeal from County Court of Kimble County

MEMORANDUM OPINION
No. 04-06-00147-CR
Jeffrey A. BRYAN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court, Kimble County, Texas
Trial Court No. 05-0884
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

 

Delivered and Filed: April 18, 2007

 

AFFIRMED

Jeffrey A. Bryan was found guilty of possession of drug paraphernalia and was fined $500.00. On appeal, Bryan, representing himself, argues that (1) his right to a speedy trial was violated; (2) his constitutional rights were violated during the traffic stop; and (3) the trial court should have entered a directed verdict. We affirm.

Background

On March 16, 2004, during a routine patrol of Interstate 10, Kimble County Deputy Sheriff Billy Hull saw a car with what appeared to be illegally tinted windows. As Hull was looking to see if the driver of the car was wearing a seatbelt, he noticed that because the car's license plate was obscured, he could not read the state that had issued the plate. Hull, therefore, stopped the car, which was driven by Appellant Jeffrey A. Bryan.

During the stop, Deputy Hull asked Bryan about the windows and informed him that his license plate was obscured by a frame in violation of Texas law. As Deputy Hull performed a driver's license check to see if Bryan had any outstanding warrants, Bryan removed the frame from his license plate. The results of the license check showed that, contrary to what Bryan had told Hull, Bryan had been arrested for possession of marijuana in the past. In addition, according to Deputy Sheriff Hull, Bryan was not consistent in his statements about his planned destination and was acting nervous.

Based on Bryan's misrepresentation of his criminal history, his inconsistent statements, and his nervous behavior, Deputy Hull decided to have his dog sniff Bryan's car. Hull's dog, trained to find odors of narcotics, including marijuana, methamphetamine, heroin, and cocaine, was sleeping in Hull's patrol car. As Deputy Sheriff Hull approached the car with his dog, Bryan's own dog began barking from inside the car. Hull ordered Bryan to remove the dog from the car, and after Bryan had done so, Hull approached Bryan's car again with the dog. As the dog sniffed the perimeter of the car, he alerted twice. Hull opened the door of the car and found rolling papers and two and a half rolled marijuana joints inside pill bottles. One joint was partially smoked. According to Hull, probably fourteen minutes elapsed from the time he stopped Bryan to the time he found the drugs. Hull then issued Bryan a ticket for possession of drug paraphernalia.

Bryan was found guilty of possessing drug paraphernalia by a jury in the Justice of the Peace Court. He appealed to County Court where he was also found guilty by a jury. See Tex. Code Crim. Proc. Ann. art. 45.042(b) (Vernon 2006) (providing that unless appeal is taken from a municipal court of record and the appeal is based on error reflected in the record, the trial shall be de novo). He now appeals to this Court, arguing, in a pro se brief, that his right to a speedy trial was violated, that his rights were violated by "Deputy Hull's pretextual stop," and that the trial court had a duty to enter a directed verdict.

Speedy Trial

Both the Sixth Amendment to the United States Constitution and article I, section 10, of the Texas Constitution guarantee an accused the right to a speedy trial. See U.S. Const. amend. VI;Barker v. Wingo, 407 U.S. 514, 515 (1972); Tex. Const. art. I, 10; Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002). Although an accused's right to a speedy trial under the Texas Constitution exists independently of the federal guarantee, the Texas Court of Criminal Appeals has traditionally analyzed claims of a denial of the state speedy trial right under the factors established in Barker v. Wingo, 407 U.S. 514 (1972). See Zamorano, 84 S.W.3d at 648.

Under Barker v. Wingo, we analyze speedy trial claims by first weighing the strength of the following factors and then balancing their relative weights in light of "the conduct of both the prosecution and the defendant": (1) "whether delay before trial was uncommonly long"; (2) "whether the government or the criminal defendant is more to blame for that delay"; (3) "whether, in due course, the defendant asserted his right to a speedy trial"; and (4) whether he suffered prejudice resulting from the delay. Zamorano, 84 S.W.3d at 647-48 (quoting Barker, 407 U.S. at 530). None of these four factors is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Barker, 407 U.S. at 533; Zamorano, 84 S.W.3d at 648. "Instead, they are related factors, which must be considered together along with any other relevant circumstances." Zamorano, 84 S.W.3d at 648 (citing Barker, 407 U.S. at 533). Because "[n]o one factor possesses 'talismanic qualities,'" we "must 'engage in a difficult and sensitive balancing process' in each individual case." Id. (quoting Barker, 407 U.S. at 533).

And, in reviewing the trial court's ruling on an appellant's constitutional speedy trial claim, "we apply a bifurcated standard of review: an abuse of discretion standard for the factual components and a de novo standard for the legal components." Id.

A. Length of Delay

The length of delay is a triggering mechanism for analysis of the other three Barker factors and is measured from the time the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing United States v. Marion, 404 U.S. 307, 313 (1971)). Unless the delay is presumptively prejudicial, we need not inquire into the other Barker factors. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). Generally, a "delay approaching one year" is sufficient to trigger a speedy trial inquiry. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Here, Bryan was issued a ticket on March 16, 2004. On August 4, 2005, almost a year and a half later, Bryan was found guilty by a jury in the Justice of the Peace Court. This delay was sufficient to trigger a speedy trial inquiry and weighs in favor of finding a violation of Bryan's right to a speedy trial. See id.

B. Assertion of Right

"Although a defendant's failure to seek a speedy trial does not amount to a waiver of the speedy trial right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim." (1) Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). "Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them." Zamorano, 84 S.W.3d at 651. "Therefore, the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Id. "Conversely, a failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial." Id. "This is so because a defendant's failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one." Shaw, 117 S.W.3d at 890; see also Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). Further, "the longer the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one." Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 314. Thus, "a defendant's inaction weighs more heavily against a violation the longer the delay becomes." Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 314.

Here, on June 6, 2004, Bryan sent a letter to the Justice of the Peace, explaining that although he filed a federal civil action in the Northern District of Georgia against Deputy Hull, Deputy Hearnsberger, the Kimble County Sheriff's Department, and Kimble County, he was invoking his right to a speedy trial under article 32A of the Texas Code of Criminal Procedure. (2) On November 21, 2005, after appealing from the Justice of the Peace Court, Bryan filed in the County Court a "Motion for Court's Consideration of the Violation of Defendant's Speedy Trial Rights," in which he argued his rights had been violated under article 32A and Barker v. Wingo, 407 U.S. 514 (1972). On January 4, 2006, Bryan filed a "Motion for Telephonic Conference and/or Hearing as to Defendant's Pending Motions." The trial court then set all pending motions for hearing on January 27, 2006.

At that hearing, however, Bryan did not argue his motion for speedy trial. Indeed, no mention was made of his motion or his right to speedy trial. (3) Thus, although Bryan sent a letter to the Justice of the Peace invoking his right to a speedy trial under the Texas Speedy Trial Act, he did not actually seek a hearing regarding his speedy trial rights until January 4, 2006, 1 year, 6 months, 29 days after he first sent his letter. And, the trial court set his motions for hearing a mere 23 days after Bryan filed his motion for a hearing. Further, at that hearing, Bryan did not assert his speedy trial rights. Therefore, we find that this factor weighs in favor of the State. See Jones v. State, No. 04-05-00777-CR, 2007 WL 246876, at *4 (Tex. App.--San Antonio 2007, no pet. h.) (concluding that defendant was attempting to obtain a dismissal rather than a prompt trial because although defendant mailed a letter to the trial court, filed a motion, and filed a habeas corpus, he made no attempt to obtain a hearing until he was found guilty by the jury and the State rested in the punishment phase; and as such, finding factor weighed against defendant based on his lack of persistence).

C. Reason for Delay

When assessing the reason the State assigns to justify the delay, "different weights should be assigned to different reasons." Barker, 407 U.S. at 531; see also Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314. Thus, a deliberate attempt to delay the trial in order to hamper the defense will weigh heavily against the State while "a more neutral reason such as negligence or overcrowded courts" will weigh less heavily against the State. Zamorano, 84 S.W.3d at 649. Here, because there was no hearing on the motion, the record does not reflect a reason offered by the State for the delay. However, at both trials (in the Justice of Peace Court and County Court), the State announced "ready." Thus, this factor does not weigh in favor of either the State or Bryan. D. Prejudice to the Defendant Resulting from the Delay

Prejudice should be assessed in light of the interests of defendants that the speedy trial right was designed to protect. Dragoo, 96 S.W.3d at 315; Zamorano, 84 S.W.3d at 652. The Supreme Court has identified three such interests: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Dragoo, 96 S.W.3d at 315; Zamorano, 84 S.W.3d at 652. "Of these forms of prejudice, 'the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Dragoo, 96 S.W.3d at 315 (quoting Barker, 407 U.S. at 532). And, although "affirmative proof of particularized prejudice is not essential to every speedy trial claim because 'excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify'" this "'presumption of prejudice' is 'extenuated . . . by the defendant's acquiescence' in the delay." Dragoo, 96 S.W.3d at 315 (quoting Doggett v. United States, 505 U.S. 647, 655, 658 (1992)).

With respect to the first interest, preventing oppressive pretrial incarceration, Bryan was not incarcerated pretrial; he was issued a ticket. And, with respect to the second interest, minimizing anxiety and concern of the accused, Bryan does not argue that he suffered from anxiety or concern, nor is there any evidence in the record of his anxiety or concern. Instead, Bryan's argument is limited to the third interest: limiting the possibility that the defense will be impaired.

Bryan argues that the "State's conduct has been in wilful bad faith and committed for the specific purpose of destroying [his] civil claims against Deputy Hull and Kimble County and the financial liabilities of the same." According to Bryan, he

has repeatedly advanced and complained that the videotape, as released via counsel for the Sheriff's Department of Kimble County, was redacted, i.e., wilfully tampered with. Likewise, the State, via their defense counsel in the civil case, as well as the criminal case, did not release evidence [that] would have shown that the State had Deputy Hull commit perjury on the witness stand so as to obtain a finding of guilty by the jury trial [sic].

Thus, Bryan argues that "[h]ad the State not wilfully redacted and tampered with the video evidence," he would not have been found guilty. There is no evidence in the record, however, that the State arranged for Deputy Hull to commit perjury or that the videotape was tampered with.

At trial, Deputy Hull testified that his patrol car is equipped with a video camera and that it turns itself on automatically as soon as the officer turns on the emergency and flashing lights on his car. Thus, on the day in question, from the point that Deputy Hull turned on his lights to stop Bryan's car, the videotape recorded the events that took place, including the search of Bryan's car and the items found. However, at the very end of the stop, Deputy Hull did turn off the camera:

Q: Now Officer Hull, . . . had you turned off that tape at any point during your search or anything else?

 

A: I turned the tape off with about five minutes to go when I wrote Mr. Bryan the citation, because I got him out of the car. I like to rewind my tape and see if they say anything inside the cab in reference to the compartment I thought - I had had in the car. The last - about the last five minutes is when I wrote him the ticket and turned him loose.

 

Q: Okay. Excuse me, but at any point have you cut any - any of this tape out?

 

A: No.

Q: Have you stopped the sound at any point?

A: No.

Q: Have you dubbed in voices or anything of that nature?

A: No, sir.

Q: So this is a true and correct copy or original of your tape as it was in your machine that day?

 

A: Yes, it is.

Q: And it's a complete one?

A: Yes, sir, it is.

Thus, the videotape depicted the stop, the indication by the dog, and the search. That the videotape does not show the final five minutes during which Deputy Hull issued Bryan a ticket for possession of drug paraphernalia was not prejudice to Bryan resulting from the delay of trial. This factor, therefore, weighs in favor of the State.

Balancing these four Barker factors, we hold that the weight of the four factors, balanced together, is against finding a violation of Bryan's right to a speedy trial. We, therefore, overrule Bryan's first issue.

Motion to Suppress

According to Bryan, the trial court should have granted his motion to suppress because Deputy Hull had no reasonable suspicion to stop his car and investigate. (4) We disagree.

We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). "We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement." Id. "We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts." Id.

Although the Fourth Amendment to the Constitution provides protection from unreasonable searches and seizures, see U.S. Const. amend. IV, a "state official may detain a person briefly for investigation without a warrant if the official can point to specific and articulable facts, together with reasonable inferences from those facts, that reasonably suggest the person detained is presently involved in criminal activity." Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).

At the suppression hearing, Deputy Hull testified that he stopped Bryan's vehicle because (1) the window tint appeared darker than legally allowed in Texas; (2) he could not discern whether the driver was wearing a seat belt; and (3) the frame around the license plate obscured the state that issued the plate. We hold that because the frame around the license plate obscured the issuing state, Deputy Hull had reasonable suspicion to stop Bryan's vehicle.

Section 502.409(a)(7) of the Texas Transportation Code provides that a "person commits an offense if the person attaches to or displays on a motor vehicle a number plate or registration insignia that . . . has a coating, covering, or protective material that: . . . (B) alters or obscures the letters or numbers on the plate, the color of the plate, or another original design feature of the plate." Tex. Transp. Code Ann. 502.409(a)(7) (Vernon 2007). Recently, in construing this statute, the Texas Court of Criminal Appeals held that a license plate frame partially obscuring the word "Texas" was a violation of the statute. State v. Johnson, No. PD-1094-06, 2007 WL 461521, at *1 (Tex. Crim. App. Feb. 14, 2007). In doing so, the court held that because the car's license plate was displayed in violation of the law, the trial court should not have granted the defendant's motion to suppress. Id.

Here, Deputy Hull testified that the license plate on Bryan's vehicle obscured the issuing state to such an extent that, driving behind the vehicle and beside it, he could not discern which state had issued the license plate. Thus, Deputy Hull had reasonable suspicion to believe that the license plate was in violation of section 502.409(a)(7).

After Deputy Hull stopped Bryan's car, he had his trained narcotics dog sniff the perimeter of Bryan's vehicle. And, once the dog alerted Officer Hull to the possibility that illegal drugs were inside Bryan's vehicle, Officer Hull had probable cause to search the vehicle. See Harrison v. State, 7 S.W.3d 309, 311 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) ("[W]hen a trained and certified narcotics dog alerts an officer to apparent evidence or contraband, probable cause exists to search a vehicle."); see also Crockett v. State, 803 S.W.2d 308, 310 n.5 (Tex. Crim. App. 1991) (explaining that pursuant to United States v. Place, 462 U.S. 696, 707 (1983), a "canine sniff" is not a search within the meaning of the Constitution). Therefore, the warrantless search of Bryan's car was proper.

Bryan also complains that Deputy Hull engaged in a "fishing expedition for unrelated criminal activity" and that he continued the detention beyond the time necessary to conclude the traffic stop. In deciding whether the scope of an investigative stop is "reasonable," the general rule is that a stop can last no longer than necessary to effect the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). However, "[o]n a routine traffic stop, police officers may request certain information from a driver, such as a driver's license and car registration, and may conduct a computer check on that information." Id. "It is only after this computer check is completed, and the officer knows that this driver has a currently valid license, no outstanding warrants, and the car is not stolen, that the traffic-stop investigation is fully resolved." Id. at 63-64.

And, although officers are not to use "traffic stops merely as a means to conduct 'fishing expeditions,'" "the Supreme Court has expressly rejected placing any rigid time limitations on Terry stops; instead the issue is 'whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 64. "Further, neither the Fourth Amendment nor the Supreme Court dictate that an officer making a Terry traffic stop must investigate the situation in a particular order." Id. at 65. Thus, a traffic stop "may involve both an investigation into the specific suspected criminal activity and a routine check of the driver's license and car registration." Id. "Only if a license check 'unduly prolongs' the detention is the officer's action unreasonable under the circumstances." Id.

Here, after stopping Bryan's car and carefully looking at the license plate, Deputy Hull determined that Bryan was driving a car registered in Florida. He asked Bryan where he was headed and for his license. He then went back to his patrol car to check to see if Bryan's license returned any outstanding warrants. In looking at the results from the computer check, Deputy Hull realized that Bryan had lied to him about not having any previous convictions. According to Deputy Hull, this lie, coupled with Bryan's nervous behavior and his inconsistent statements about his destination, led him to decide to use his trained narcotics dog. And, Deputy Hull testified that from the time he stopped Bryan's car to the time he found the marijuana, maybe fourteen minutes elapsed. Viewing the totality of the circumstances in the light most favorable to the trial court's ruling, see id. at 66, we hold that Deputy Hull acted reasonably. Therefore, the trial court did not abuse its discretion in denying Bryan's motion to suppress. We overrule Bryan's second issue.

Directed Verdict

In his final issue, Bryan argues the following:

[I]t is [Bryan]'s legal position that the lower court had an ethical legal obligation to ensure that the State's case, as presented by the State, legally, morally, and ethically attained the required legal plateau to be valid. In other words, the lower court, as an independent legal arbitrator of the claims between the State and [Bryan], has and had an ethical and legal obligation to independently view the evidence presented by the State, under that ethical legal obligation, to determine, independently that the State's claims [are] legal and lawful under the governing laws and judicial decision, by which the lower court was governed and obligated to enforce.

 

We, however, know of no legal authority mandating such an "ethical legal obligation."

Bryan seems to be arguing that the trial court had this duty because he was unaware that when he represented himself in the Justice of Peace Court, he should have moved for a directed verdict. However, on appeal, a challenge to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). And, a challenge to the legal sufficiency of the evidence may be brought for the first time on appeal. Thus, we construe this issue as a legal sufficiency challenge.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). Here, Deputy Hull testified that he found inside Bryan's car rolling papers and two and a half rolled marijuana joints inside pill bottles. One joint was partially smoked, and both were inside pill bottles. At trial, this evidence was introduced as State's Exhibit 2. Thus, the evidence was legally sufficient.

We, therefore, overrule Bryan's final issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

 

Karen Angelini, Justice

 

DO NOT PUBLISH

 

1. We note that the State argues that Bryan waived his right to a speedy trial because he did not move for dismissal as required under the Federal Speedy Trial Act, 18 U.S.C. 3162(a)(2). Bryan, however, has not argued that his rights were violated under the Federal Speedy Trial Act. Instead, he argues that his right to a speedy trial under the United States and Texas Constitutions was violated.

2. Article 32 A. 02, the Texas Speedy Trial Act, has been held to be unconstitutional, Meshell v. State, 739 S.W.2d 246, 257-58 (Tex. Crim. App. 1987), and was repealed by the Texas Legislature in 2005. As such, in Texas, whether a defendant's right to a speedy trial is analyzed under the Barker factors. See Zamorano, 84 S.W.3d at 648.

3. Bryan was tried on January 30, 2006, three days after this hearing.

4. Although Bryan argues that the traffic stop was unreasonable under both the United States and Texas Constitutions, he has not explained how the Texas Constitution would confer greater protection than the federal Constitution. Thus, to the extent that Bryan is arguing that his rights under the Texas Constitution are greater than the federal one, he has waived the issue. See Tex. R. App. P. 38.1(h); Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002) (explaining briefs asserting rights under the Texas Constitution are inadequate if they do not provide argument and authority in support).