Murphy v. State, 12-90-00133-CR

• Decision Date: 30 September 1992
• Docket Number: No. 12-90-00133-CR,12-90-00133-CR
• Parties: Albert Lawrence MURPHY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 70

864 S.W.2d 70

Albert Lawrence MURPHY, Appellant, v. The STATE of Texas, Appellee.

No. 12-90-00133-CR.

Court of Appeals of Texas Tyler.

Sept. 30, 1992.

Rehearing Overruled April 21, 1993.

Barbara L. Law, Huntsville, for appellant.

Amy Blalock, Asst. Dist. Atty., Tyler, for appellee.

ONION, Justice (Retired). ^*

This is an appeal from a conviction for driving a motor vehicle in a public place while intoxicated. Appellant waived trial by jury and entered a plea of not guilty before the court. The trial court found the Appellant guilty and assessed his punishment at confinement in the county jail for 100 days and a fine of $100.00.

Appellant advances two points of error. Initially, Appellant contends that the "trial court erred in denying appellant's motion to suppress evidence obtained as a result of an unreasonable seizure in violation of the 4th Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution." In his second point of error, Appellant repeats his first point of error and then adds "by the manner in which the seizure was conducted."

Clearly, by combining more than one contention in a single point of error, an appellant risks rejection on the ground that nothing will be presented for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1213, 111 S.Ct. 2816, 115 L.Ed.2d 988 (1991); Thomas v. State, 723 S.W.2d 696, 697 n. 2 (Tex.Cr.App.1986); see also, Adkins v. State, 764 S.W.2d 782, 785 (Tex.Cr.App.1988). A claim of cumulative error alleging violation of both the federal and state constitutions is a multifarious point of error. Stoker v. State, 788 S.W.2d 1, 18 n. 14 (Tex.Cr.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990).

[A]ttorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground.

McCambridge v. State, 712 S.W.2d 499, 501-02 n. 9 (Tex.Cr.App.1986). The failure of an appellant to separate federal and state issues into separate grounds allows the point of error raising constitutional challenges to be overruled as multifarious. Green v. State, 736 S.W.2d 218, 220 (Tex.App.--Corpus Christi 1987, no pet.). Claims asserting violations of specific provisions of the Texas Constitution but which provides neither argument nor authority in support of the protection afforded by the state constitution are inadequate. They will not be addressed. Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Cr.App.1991); DeBlanc v. State, 799 S.W.2d 701, 706 (Tex.Cr.App.1990). Nothing in Heitman changes this caselaw in this regard. Heitman v. State, 815 S.W.2d 681, 690 n. 33 (Tex.Cr.App.1991).

Both of Appellant's points of error are multifarious and could be overruled on this basis. Green, 736 S.W.2d at 220. We will consider the federal constitutional question presented, but will not address the state constitutional question, as Appellant failed to make a sufficient distinction between the federal and state issues or to provide argument or authority in support of the specific protection afforded by the state constitution. Morehead, 807 S.W.2d at 579 n. 1. Merely citing "Article I, Section 9 of the Texas Constitution" is not sufficient. See TEX.R.APP.P.ANN. 74(f) (Vernon Pamph.1992).

In addition, the entire statements of fact from the suppression hearing is not in the record before this Court. The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP.P. 50(d) (Vernon Pamph.1992). It appears that a portion of the court reporter's notes or a transcription thereof has been lost or misplaced. The parties have agreed that the remaining statement of facts that are available will constitute the statement of facts for the purposes of appeal. See TEX.R.APP.P. 50(b), (c) and (e) (Vernon Pamph.1992). ¹

At the conclusion of the suppression hearing, the trial court found that the roadblock in question was "a driver's license check set up," that it did not have "any problem with the reasonableness" or "the stop," and overruled the motion to suppress evidence arising out of any arrest, search, and seizure.

Officer John Robert Perdue, ² Jr. of the Texas Highway Patrol testified at the suppression hearing, that on the night of July 8, 1989, he was on routine patrol south of Tyler. Perdue heard over the police radio about the checkpoint or roadblock near the intersection of Farm to Market Road 756 and Farm to Market Road 346 in Smith County. He proceeded to the roadblock arriving about 9:45 or 10:00 p.m. and was in the area about one hour before leaving. Perdue, in uniform, assisted approximately eight other officers including other state troopers, deputy sheriffs, and a deputy constable at the roadblock. Perdue did not know who had planned the operation, but stated that the oncoming traffic from either direction was being stopped. According to Perdue, there were five police vehicles with their lights on, including, he believed, the emergency flashers on some of the police vehicles. Both Trooper Perdue and Deputy Constable Pace testified that the checkpoint was a driver's license stop, but added that it was also a safety check. Perdue noted that in addition to checking driver's licenses, the officers were checking headlights, the high beam indicator, taillights and tires on the passing vehicles. The evidence shows that the location of the roadblock had been previously used by the officers as a checkpoint.

Officer Perdue testified that about 10:20 p.m. on July 8, 1989, he observed a black and silver Chevrolet pickup truck stop in the roadway some thirty (30) feet short of the roadblock. Perdue became suspicious of the pickup's action. It was dark and Perdue was concerned for his safety. He called to the other officers and flashlights were directed towards the cab of the pickup truck. Perdue saw three occupants of the truck in the front seat. The taller, older man, later identified as Appellant, was seated in the center. The other two were young male teenagers; one of whom was behind the wheel. The young driver crawled over the Appellant and the Appellant moved into the driver's position. The truck then moved forward and stopped at Perdue's direction. As Perdue approached the truck, Appellant lowered the driver's window. Officer Perdue asked for Appellant's driver's license, which Appellant could not find at that time. Perdue leaned into the truck and determined that the age of the former driver was fourteen years of age. At this point, Officer Perdue concluded that Appellant was very intoxicated. Appellant smelled of alcohol, his eyes were watery and his speech was slurred. He was arrested for driving while intoxicated.

Ronnie Stewart testified as a defense witness at the suppression hearing. He related that earlier in the day on July 8, 1989, he had helped wash Appellant's truck. Stewart explained that "they" planned to go to a field meeting that night, a barbecue party of motorcycle organizations. Stewart acknowledged that he was an unlicensed driver, and that Appellant knew this when he permitted Stewart to drive Appellant's truck that night. As they approached the lights of what appeared to be a roadblock, Appellant told Stewart to switch places with him. As Appellant drove forward, an officer directed him to the side of the road.

Appellant testified that on the occasion of his arrest he was with the young brothers of his girlfriend. They were on their way to a field meeting of motorcycle organizations. Appellant admitted that he had allowed the unlicensed, fourteen year old Ronnie Stewart to drive his truck because he was teaching Ronnie how to drive. As they approached the roadblock, Appellant instructed Ronnie to trade places with him. Appellant then drove the truck forward and was instructed by the officer to pull over to the side of the road. Appellant acknowledged that he had consumed alcohol that day. Appellant stated that later when he arrived at the jail, he learned that he had been arrested for driving while intoxicated. ³

In his argument, Appellant calls attention to TEX.REV.CIV.STAT.ANN. art. 6687b, § 13 (Vernon 1977), ⁴ and relies upon Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985), for the proposition that where a driver's license checkpoint is not the sole reason for the detention, any broader basis for detention is not authorized by the state statute and cannot be upheld. Meeks made clear that under state law, a fixed general, all-purpose investigatory stop of motorists is not permissible under article 6687b, section 13. The state statute may not be used as a "fishing expedition" and as a subterfuge for a general investigatory sweep of motorists in the area. Webb v. State, 739 S.W.2d 802, 812 (Tex.Cr.App.1987). Meeks did not, however, resolve the issue of whether the Texas scheme for driver's license checks meets the muster of the fourth amendment. Id.

Appellant argues that the instant roadblock was more than a driver's license checkpoint; that it was a "safety check" roadblock as well. ⁵ Any argument by Appellant that the roadblock was invalid under state law is not within the scope of Appellant's points of error concerning federal constitutional violations. ⁶ Further, as a basis for its ruling on a motion to suppress evidence, a trial court may choose to believe or disbelieve any or all of any witness's testimony, Taylor v. State, 604 S.W.2d 175, 177 (Tex.Cr.App.1980), and an appellate court is not at liberty to disturb any finding which is supported by the record. Green v. State, 615 S.W.2d 700, 707 (Tex.Cr.App.1980); see also, Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990); Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990); Valencia v. State, 820 S.W.2d 397, 399 (Tex.App.-Houston [14th Dist.] 1991, pet ref'd). The trial court in the instant case found that the roadblock was "a...