Cheek v. State

• Decision Date: 06 March 2018
• Docket Number: NO. 14-16-00787-CR,14-16-00787-CR
• Citation: 543 S.W.3d 883
• Parties: Brian Anthony CHEEK, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

543 S.W.3d 883

Brian Anthony CHEEK, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00787-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 6, 2018

Jared Robinson, Galveston, TX, for Appellant.

Alan Curry, Galveston County, TX, for State.

Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

OPINION

Kem Thompson Frost, Chief Justice

Appellant Brian Anthony Cheek challenges the trial court’s judgment revoking his community supervision. Appellant asserts that the State violated his constitutional rights to a speedy trial and that the trial court abused its discretion in denying his motion to suppress evidence allegedly obtained in violation of the Fourth Amendment of the United States Constitution. We conclude that appellant did not preserve error on his speedy-trial complaint and that the trial court did not abuse its discretion in denying appellant’s motion to suppress. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2004, appellant was charged with engaging in organized criminal activity, specifically the burglary of a habitation. Appellant pled "guilty" and the trial court sentenced him to ten years' confinement. The trial court then suspended the sentence and placed appellant on community supervision.

Appellant’s community supervision required, among other things, that appellant (1) commit no offense against the laws of the State of Texas or of any other State, the United States or any governmental entity, (2) report in person to the supervision officer at least once each month, (3) abstain from the use or possession of any drugs, except those taken or possessed under doctors' orders, and (4) participate in a program designed to detect controlled substances.

The Traffic Stop

One night in October 2011, Officer Scott Karpowicz, patrolling in his vehicle, saw six lights coming from the front of appellant’s truck. The officer suspected the driver was violating Texas Transportation Code section 547.302, which regulates the types of lights that can be lighted on the front of a motor vehicle. See Tex. Transp. Code Ann. § 547.302 (West, Westlaw through 2017 1st C.S.). So, the officer initiated a traffic stop. As a result of the stop appellant was charged with possession of a controlled substance and driving with an invalid license. Also, as a result of the traffic stop, Officer Karpowicz became aware that a neighboring county had issued a warrant for appellant’s arrest for driving with an invalid license.

Motion to Revoke Appellant’s Community Supervision

In 2012, the State filed a motion to revoke appellant’s community supervision. The State alleged that appellant violated the terms of his community supervision by,¹ (1) committing the offense of driving with an invalid license, (2) being arrested on a warrant from another county for driving with an invalid license, (3) failing to report to his adult community-supervision officer as ordered, and (4) submitting a urine sample that tested positive for amphetamines.

Time and again the trial court reset the hearing on the motion to revoke appellant’s community supervision while other cases against appellant went to trial in neighboring counties. Before the revocation hearing, appellant filed a motion to dismiss and a motion to suppress evidence. The trial court denied both motions.

Evidence at the Revocation Hearing

At the hearing on the State’s motion to revoke appellant’s community supervision, Officer Karpowicz testified that during the traffic stop he discovered that appellant had a suspended driver’s license and an outstanding warrant for appellant’s arrest in Waller County. Appellant’s community-supervision officer testified that appellant did not report in January, February, March, April, August, or December of 2011 nor in January or February of 2012.

Trial Court’s Findings

The trial court found "true" to the State’s allegations that appellant committed the offense of driving without a license, that appellant was arrested for driving with an invalid license in Waller County, and failed to report to his adult community-supervision officer as ordered in January, February, March, April, August, and December of 2011 and January and February of 2012. The trial court found "not true" to the State’s allegation that appellant submitted a urine sample that tested positive for amphetamines.

The trial court heard evidence on numerous extraneous offenses that the State had not alleged in the motion to revoke appellant’s community supervision. The trial court revoked appellant’s community supervision and reduced his sentence to seven years' confinement.

Speedy Trial Argument

In his first issue, appellant asserts that the trial court erred in denying his motion to dismiss the State’s motion to revoke appellant’s community supervision because the delay in hearing the motion to revoke violated his federal constitutional right to a speedy trial under the Sixth and Fourteenth Amendments and his right to a speedy trial under article I, section 10 of the Texas Constitution.

In the motion to dismiss, appellant alleged that "since the filing of the Motion to Revoke on December 6, 2011, the state has not used due diligence to bring the probationer to a revocation hearing." Appellant argued that the trial court should dismiss the motion to revoke appellant’s community supervision because under Texas law, a revocation hearing cannot be held after the probationary period has expired unless the State exercises due diligence in pursuing the hearing. In support of the motion, appellant cited Brecheisen v. State , 4 S.W.3d 761 (Tex. Crim. App. 1999) ; Harris v. State , 843 S.W.2d 34 (Tex. Crim. App. 1992) ; and Peacock v. State , 77 S.W.3d 285 (Tex. Crim. App. 2002). All three cases relate to due diligence. Peacock , 77 S.W.3d at 285–92 ; Brecheisen , 4 S.W.3d at 761–65 ; Harris , 843 S.W.2d at 34–36. In none of them do the courts discuss any constitutional right to a speedy trial. Peacock, 77 S.W.3d at 285–92 ; Brecheisen , 4 S.W.3d at 761–65 ; Harris , 843 S.W.2d at 34–36. At the hearing on the motion to dismiss, appellant continued to argue that the State did not exercise due diligence in bringing appellant to trial. Appellant did not mention "speedy trial" or invoke any constitutional right or direct the trial court’s attention to any argument or authorities relating to speedy trial. The record contains nothing that would have alerted the trial court to a speedy-trial issue.

To present a complaint on appeal, the record must show that the objecting party made the complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). Texas Rule of Appellate Procedure 33.1 places the burden on appellant to clearly convey to the trial judge the particular complaint, including the precise application of the law as well as the underlying rationale. Pena v. State , 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Error preservation does not involve a hyper-technical or formalistic use of words or phrases, but to avoid forfeiting a complaint on appeal, the party must let the trial judge know what relief the party seeks, why the party is entitled to the requested relief, and to do so clearly enough for the judge to understand the issue at a time when the judge can do something about it. Id. Requiring parties to state their complaints precisely gives the trial court a chance to rule on the objection by informing the judge of the basis for it and also gives the opposing side a chance to respond to the complaint. Douds v. State , 472 S.W.3d 670, 674 (Tex. Crim. App. 2015). Appellant was required to preserve error on his claim that the delay in hearing the motion to revoke his community supervision violated his constitutional right to a speedy trial. See Dunn v. State , 819 S.W.2d 510, 526 (Tex. Crim. App. 1991). Presenting a statutory or common-law speedy-trial claim to the trial court does not preserve error on a claim that the State has violated appellant’s constitutional right to a speedy trial. See id. Because appellant failed to preserve error on his complaint that the State violated his constitutional right to a speedy trial, we overrule appellant’s first issue.

Motion to Suppress Argument

Appellant next contends that the trial court abused its discretion in denying his motion to suppress on the grounds that Officer Karpowicz did not have reasonable suspicion to believe that appellant was committing a traffic violation when he stopped appellant’s truck. Appellant points to the officer’s testimony and argues that the officer’s mistaken belief about the law led to the traffic stop. According to appellant, Officer Karpowicz incorrectly believed any vehicle with six lights shining from the front of the vehicle violated Transportation Code section 547.302 when, appellant contends, in reality if some of the lights on the front of the vehicle were fog lights or different types of auxiliary lights, the lighting combination would not violate section 547.302.

At the hearing on the motion to suppress, Officer Karpowicz testified that he stopped appellant’s truck because he saw six headlights illuminated on the front and suspected a section 547.302 violation. According to Officer Karpowicz, when he made the stop, two original headlamps and four after-market headlamps were shining from the front of the truck.

During cross-examination, defense counsel questioned Officer Karpowicz about permissible combinations of lights and the officer agreed that in addition to four headlamps, it is permissible to have other lamps illuminating the front of a vehicle, including fog lamps. When asked about the Transportation Code’s definition of a headlamp, Officer Karpowicz could not recall the specific definition, but stated "I know what a headlamp is." Officer Karpowicz agreed that the ...