BRUCE NOWLIN PATTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 10, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01399-CR
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BRUCE NOWLIN PATTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 86th District Court
Kaufman County, Texas
Trial Court Cause No. 23195-86
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        Bruce Nowlin Patton appeals his evading arrest/detention with a motor vehicle conviction. A jury convicted appellant, and the trial judge sentenced him to two years' confinement and a $1000 fine. In four points of error, appellant argues the trial court reversibly erred in failing to properly admonish him concerning his self-representation and admitting evidence of a video recording of the underlying incident, his level of self-representation constituted ineffective assistance of counsel, and the evidence is legally and factually insufficient to prove beyond a reasonable doubt that his continued detention by police was lawful. We affirm the trial court's judgment.
        On August 12, 2004, State Trooper John Logan stopped appellant for speeding on Interstate 175 near Seagoville. When Logan initially made contact with appellant, appellant appeared to have the appearance of a heavy methamphetamine user: greasy hair, oily skin, loose teeth, gaunt jaw and sunken eyes. The car appellant was driving had an exposed steering column and was running without a key in the ignition. Appellant stated he was a lawyer, and the car belonged to a client of his. Logan was suspicious because narcotics are often transported in a third party's car to avoid seizure of their car if they are caught. Appellant was “overly-friendly” and gave his State Bar of Texas card to Logan along with his driver's license. Appellant's passenger, Tessa Thorn, appeared substantially younger than appellant. Appellant appeared to be in his late forties, but Thorn appeared between eighteen or twenty years old. Appellant got out of the car, and Logan asked about appellant's relationship with Thorn. Appellant said Thorn was a prospective client with a child custody issue to discuss, and she had agreed to help him retrieve another car from a nearby town. Logan asked Thorn, who was still sitting in the passenger seat, about her relationship with appellant, and she said appellant was a friend of her uncle. Thorn did not know where appellant was taking her.
        Logan told appellant a “blue lie” that appellant would receive a warning ticket, and Logan returned to his patrol care to continue the investigation. Logan confirmed, as appellant had told him, that appellant had a hold on renewal of his driver's license because he had failed to appear in a court proceeding. While Logan was uncertain of the consequences of the hold, he determined appellant's license was not suspended. Another trooper, Brad Brewer, called Logan and told him to be careful and that appellant had a criminal history as a “cop killer.”   See Footnote 1  From calling in on his radio, Logan was told appellant had a history of cases involving drugs. In view of this information, Logan returned to appellant's car and asked for consent to search the car. When appellant refused, Logan returned to his patrol car to check on the availability of a K-9 unit. Logan had not yet had a chance to check appellant's vehicle identification number or to speak with Thorn alone. Further, although Logan had determined appellant's car was not reported stolen, he remained uncertain whether it was “fresh stolen” because the car's steering column was exposed and there was no key in the ignition.
Based on the totality of the circumstances, Logan decided to continue his detention of appellant in order to conduct a K-9 search. Logan informed appellant that he had called a K-9 unit to the scene, and it would take as long as forty-five minutes for the K-9 unit to arrive. Appellant asked what probable cause Logan had to keep appellant at the scene, and Logan responded he had a reasonable suspicion to detain appellant, that was what he was doing. Thorn asked if she could get out of the car, and Logan agreed, stating that he still needed to positively identify her. While Logan was talking with Thorn, he saw appellant digging around in the back seat and asked him to stop. Appellant complied. As Logan and Thorn were talking, appellant started his car and drove away, driving through a grassy area between the shoulder of the interstate and the access road. As appellant drove away, he threw clothing out of the car. Logan decided to stay with Thorn, and he contacted the Kaufman County sheriff's department and gave them a description of appellant's vehicle and the direction in which it was traveling. A few hours later, police found the car abandoned in an adjacent county. The steering wheel and radio had been stripped from the car.
        Appellant was subsequently arrested and charged with evading arrest with a vehicle. At trial, appellant represented himself, conducted extensive voir dire of the potential jury members, and cross-examined the State's witnesses. Although appellant initially raised objections to the introduction of the videotape of the incident from Logan's patrol car, he ultimately withdrew his objections. Appellant's defense was that he was unlawfully detained because the valid purposes of the traffic stop were effectuated, and he told the jury to watch the videotape and compare it to Logan's report. At the close of the evidence, the jury found appellant guilty of evading arrest with a vehicle. This appeal followed.
        In his first point of error, appellant argues the trial court's failure to properly admonish him concerning his self-representation constituted reversible error. To choose self-representation competently and intelligently, the defendant should be made aware of the dangers and disadvantages of self-representation so that the record will establish that the defendant “knows what he is doing and his choice is made with eyes open.” Walker v. State, 962 S.W.2d 124, 126 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). Waiver of the constitutional right to counsel need not be in writing to be effective. Burgess v. State, 816 S.W.2d 424, 430 (Tex. Crim. App. 1991). Here, the record shows appellant was a licensed attorney since 1983 practicing as a criminal defense lawyer. Appellant conducted extensive voir dire and cross- examined the State's witnesses, in addition to presenting his defense that he was unlawfully detained because the valid purposes of the traffic stop were effectuated. Under these circumstances, we conclude the record shows appellant, a licensed attorney, knew what he was doing when he chose to represent himself and made his choice with eyes open. See Burgess, 816 S.W.2d at 430.
        Relying on article 1.051(g) of the code of criminal procedure, appellant argues the trial court was required to admonish him and obtain a written waiver of his right to counsel from appellant. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005). However, article 1.051(g) is not mandatory. Burgess, 816 S.W.2d at 431. Accordingly, the trial court did not err in failing to obtain a written waiver from appellant in this case. See id. We overrule appellant's first point of error.
        In his second point of error, appellant argues the trial court reversibly erred in publishing the videotape of the traffic stop to the jury without formally admitting it and allowing the jury to have the videotape during deliberations. A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Here, appellant withdrew his objections to the videotape and told the jury to watch the videotape. Although appellant initially raised objections to the videotape's admission, we conclude his withdrawal of those objections justified the trial court's admission of the videotape. Accordingly, the trial court did not abuse its discretion in admitting the videotape. See Torres, 71 S.W.3d at 760. We overrule appellant's second point of error.
        In his third point of error, appellant argues his level of self-representation constituted ineffective assistance of counsel. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813.
        Here, the record shows appellant was a licensed attorney with more than twenty years' experience as a criminal defense lawyer. Our review of the record shows appellant conducted extensive voir dire and cross-examined the State's witnesses, in addition to presenting his defense that he was unlawfully detained because the valid purposes of the traffic stop were effectuated. In conducting his defense, appellant effectively, though unsuccessfully, presented himself as the victim of Logan's unreasonable detention based on lies that appellant was a “cop killer” and a drug user. Under the facts and circumstances of this case, we cannot conclude appellant received ineffective assistance of counsel. See Strickland, 466 U.S. at 687-88, 694. We overrule appellant's third point of error.
        In his fourth point of error, appellant argues the evidence is legally and factually insufficient to show his continued detention was lawful. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        Here, appellant does not argue Logan was unjustified in stopping him for speeding and for possibly having illegal window tinting. Instead, appellant argues Logan's continued detention of him was unjustified once the purpose of the stop, issuing a warning for speeding and determining the window tinting was legal, was completed. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). The propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly. Id.
        The record shows Logan stopped appellant for speeding and for having window tinting that appeared illegal. Logan determined the window tinting was legal, but he saw appellant had the appearance of a heavy methamphetamine user. The fact that Thorn's companion was a much younger female who did not know where appellant was taking her was consistent with drugs being the basis of appellant and Thorn's relationship. The steering column on the car appellant was driving indicated it might be “fresh stolen,” and there was no key in the ignition. Appellant told Logan the car was not his, but Logan knew people transporting drugs often used cars belonging to third parties to avoid having their own cars confiscated. Finally, though appellant argues the purpose of the stop was completed, the record shows Logan was not able to complete the written warning before appellant left the scene of the stop. Having reviewed the record, we conclude the evidence is legally and factually sufficient to show Logan was justified in detaining appellant. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's fourth point of error.
        We affirm the trial court's judgment.
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051399f.j
 
Footnote 1 The record does not contain evidence of appellant's prior criminal history.