Wayne Earl Christiansen v. State of Texas--Appeal from 198th Judicial District Court of Kerr County

No. 04-01-00123-CR
Wayne Earl CHRISTIANSEN,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B00-1
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Paul W. Green, Justice

Delivered and Filed: December 12, 2001

REVERSED AND REMANDED

Wayne Earl Christiansen ("Christiansen") was convicted of possession of a controlled substance (methamphetamine) and sentenced to 45 years imprisonment. In two points of error, Christiansen contends that: (1) the trial court erred in denying his motion to suppress; and (2) the State failed to prove that the second prior conviction used for enhancement purposes occurred subsequent to the first prior conviction becoming final. We reverse the trial court's judgment as to punishment and remand the cause for a new punishment hearing.

Background

Based on a crime stopper's report that Christiansen and his girlfriend, Kimberly Flores, were either manufacturing or in possession of methamphetamines at a hotel, the hotel was placed under surveillance. Christiansen and Flores exited the hotel carrying boxes and clothes bags. After Flores was unable to start her car, Christiansen got into the driver's seat. A truck pushed the car from the hotel parking lot onto the highway. The car was blocking a lane of traffic, creating a traffic hazard. An officer, who personally knew that Christiansen's license had been suspended, activated his overhead lights to warn other drivers of the traffic hazard. Christiansen and Flores pushed the car to the side of the road. Christiansen was arrested for driving with a suspended license. Flores was asked for permission to search her car. Flores initially refused to consent. At Christiansen's urging, however, Flores subsequently gave her consent. In searching the contents of the car, methamphetamines were found. Christiansen stated that the methamphetamines were his, not Flores's, and signed a written statement to that effect.

Christiansen filed a motion to suppress, asserting that the methamphetamines were obtained as a result of an illegal stop, detention and arrest. The trial court denied the motion. A jury found Christiansen guilty. Christiansen elected for the trial court to assess his punishment. Evidence of two prior convictions was introduced, and the trial court sentenced Christiansen to 45 years imprisonment.

Motion to Suppress

In his first point of error, Christiansen contends that the trial court erred in denying his motion to suppress. Christiansen contends that his stop, detention, and arrest for driving with license suspended was a pretext to enable the officers to search the vehicle. Christiansen further contends that Flores's consent to the search was invalid.

In reviewing the trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts, but we decide de novo whether the trial court erred in misapplying the law to the facts. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App.1997).

Operating a motor vehicle on a highway during any period that a person's driver's license is suspended is an offense. See Tex. Transp. Code Ann. 521.457 (a)(2) (Vernon Supp. 2001). The arresting officer testified that he had personal knowledge that Christiansen's driver's license was suspended. Therefore, when the officer saw Christiansen operating the car on the highway, he had probable cause to believe Christiansen was committing an offense, giving him the authority to stop and arrest Christiansen. Even if the officer had an ulterior motive for stopping and arresting Christiansen, the pretext does not invalidate the stop and arrest. Crittenden v. State, 899 S.W.2d 668, 674 (Tex. Crim. App. 1995).

Christiansen contends that he was not "operating" the car because it would not start. The Court of Criminal Appeals has adopted the definition of "operating" set forth by the Dallas court of appeals in Barton v. State, 882 S.W.2d 456, 459 (Tex. App.--Dallas 1994, no pet.). See Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). In Barton, the Dallas court of appeals explained its understanding of the term "operating" as follows:

We do not accept the contention that to operate a vehicle within the meaning of the statute, the driver's personal effort must cause the automobile to either move or not move. Purposely causing or restraining actual movement is not the only definition of "operating" a motor vehicle. In other words, we examine the totality of the circumstances to determine if appellant exerted personal effort upon his vehicle in a manner that shows intentional use of the vehicle for its intended purpose. We hold that the evidence is sufficient to show operation of a motor vehicle where the totality of the circumstances demonstrates that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use.

882 S.W.2d at 459. In this case, Christiansen was exerting personal effort upon the car by maneuvering the car while it was being pushed in an effort to start it. The car's failure to start does not detract from Christiansen's intentional use of the car for its intended purpose. Therefore, based on the totality of the circumstances, we conclude that Christiansen was operating the car.

With regard to Christiansen's complaint challenging Flores's consent to search the car, we first examine Christiansen's standing to assert this complaint. See State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996) (noting that standing may be raised for first time on appeal even if not raised before the trial court). We initially note that Christiansen does not have standing to complain that Flores's detention was unlawful. Constitutional rights are personal and cannot be raised by third parties. United States v. Salvucci, 448 U.S. 83, 85 (1980); United States v. Jefferson, 925 F.2d 1242, 1249 n.4 (10th Cir. 1991).

The question that remains is whether Christiansen has standing to challenge whether Flores's consent to search the vehicle was voluntarily given. The presence of the owner of a car, who clearly has standing to object to the search, generally dilutes any claim to standing by a nonowner driver. State v. Allen, 53 S.W.3d 731, 732 (Tex. App.--Houston [1st Dist.] July 26, 2001, no pet. h.) (citing United State v. Jefferson, 925 F.2d at 1249-51, and United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982)). A nonowner driver does not have standing when: (1) drugs are found in the trunk of a car, (2) there was no evidence the defendant used the car at any other time, (3) the defendant placed no luggage or personal belongings in the trunk, and (4) the defendant claimed no property or possessory interest either in the car or in the property seized. Id.

In this case, unlike the cases establishing the general rule, Christiansen claimed a possessory interest in the property seized. Therefore, although Christiansen does not have standing to assert that Flores's detention was unlawful, he does have standing to contest the validity of the search by challenging the voluntariness of Flores's consent.

A search made after voluntary consent is not unreasonable. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). The State is required to prove the voluntariness of consent by clear and convincing evidence. Id. In determining whether consent was given voluntarily, the trial court must look at the totality of the circumstances surrounding the statement of consent. Id.

In this case, Flores initially refused to consent to the search. The only circumstance intervening between Flores's initial refusal and her subsequent consent was the urging of Christiansen. The officers did not coerce Flores to consent. Accordingly, we conclude that Flores's consent was voluntarily given, and the trial court properly denied the motion to suppress.

Christiansen's first point of error is overruled.

Enhancement

With regard to Christiansen's second point of error, the State concedes that it failed to prove the elements necessary to sentence Christiansen as a habitual felon under section 12.42(d) of the Texas Penal Code and that the sentence imposed is invalid. Because the error was made during the punishment stage of the trial, we reverse the judgment but only remand the cause for a new punishment hearing. See Tex. Code. Crim. Proc. Ann. art. 44.29 (Vernon Supp. 2001).

Conclusion

Because the State failed to prove the elements necessary to sentence Christiansen as a habitual felon, the trial court's judgment is reversed as to punishment, and the cause is remanded to the trial court for a new punishment hearing.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH