Sutton v. State
| Decision Date | 22 April 2020 |
| Docket Number | NO. 12-19-00211-CR,12-19-00211-CR |
| Parties | CHARNA MAELEAN SUTTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
APPEAL FROM THE COUNTY COURT UPSHUR COUNTY, TEXAS
Charna Maelean Sutton appeals her conviction for displaying a fictitious/altered motor vehicle registration insignia. Appellant raises five issues on appeal. We affirm.
On November 27, 2017, Gilmer Police Department Patrol Sergeant Andrew Chandler was in his patrol vehicle turning northbound onto U.S. Highway 271. As he did so, he observed a vehicle, which had a registration sticker he described as "absolutely fake," enter the highway from a side street, drive in the incorrect lane against the flow of traffic, and exit the roadway into a convenience store parking lot where it stopped. Chandler initiated a traffic stop in the parking lot.
As he approached the vehicle, Chandler observed that the registration sticker was attached only partially to the inside of the windshield. He described the numbers on the sticker as having been altered with a ball point pen, and he reached through the driver's window and retrieved the sticker. Chandler asked Appellant, the driver, for her driver's license. Appellant responded that she did not have a driver's license with her. Chandler contacted his dispatcher and provided Appellant's name and date of birth. Subsequently, Chandler received a return communication from the dispatcher informing him that Appellant's license was suspended and she did not have liability insurance. As a result, Chandler arrested Appellant.
Appellant was charged by an amended information with displaying a vehicle registration insignia which was fictitious because the expiration date knowingly was altered. Appellant pleaded "not guilty," and the matter proceeded to a jury trial. At the conclusion of trial, the jury found Appellant "guilty" as charged. Thereafter, the trial court sentenced Appellant to confinement for one hundred fifty days. Subsequently, Appellant filed a motion for new trial. Following a hearing on Appellant's motion, the trial court reduced Appellant's sentence to confinement for sixty days. This appeal followed.1
In her first issue, Appellant argues that the trial court committed reversible error by denying her request that she be permitted to testify at trial.2 The record reflects that after Appellant's final witness was excused, the trial was recessed for approximately thirty-seven minutes. When the proceedings resumed, Appellant was not present and did not return until after the defense rested, the jury returned its verdict, and the trial court pronounced Appellant's sentence. Upon her return, Appellant explained that she was absent because she took a witness, Velma Choice, back to her home. She then stated, The trial court, in response, advised Appellant of her right to appeal.
We addressed this issue in Appellant's companion appeal.3 For the reasons expressed in that opinion, we likewise hold here that Appellant failed to preserve error. See TEX. R. APP. P. 33.1. But even assuming arguendo that Appellant's statement to the trial court could be construed as a request to testify, the trial court's resumption of proceedings in Appellant's absence waslawful, and Appellant is estopped under the invited error doctrine from complaining on appeal that she was not permitted to testify. See TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006); Vennus v. State, 282 S.W.3d 70, 74 (Tex. Crim. App. 2009). Appellant's first issue is overruled.
In her second issue, Appellant argues that the trial court abused its discretion in excluding from its charge an instruction on the defense of necessity. As with issue one, we addressed this issue in Appellant's companion appeal.4
As a result, we hold here that because Appellant did not request that the trial court include an instruction in its charge on the defense of necessity, nor did she object to its omission, the trial court did not abuse its discretion in omitting such an instruction from its charge. See Oursbourn v. State
, 259 S.W.3d 159, 179 (Tex. Crim. App. 2008). But even if Appellant had requested such an instruction and had the trial court denied it, the outcome would not vary because Appellant's defensive evidence does not support an admission of the conduct underlying the offense of driving a motor vehicle with a fictitious/altered registration insignia. See Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) (). Accordingly, we hold that Appellant was not entitled to a necessity instruction in the court's charge because she did not admit to having committed the essential underlying conduct. See Shaw v. State, 243 S.W.3d 647, 660 (Tex. Crim. App. 2007); see also Williams v. State, 314 S.W.3d 45, 50 (Tex. App.-Tyler 2010, pet. ref'd). Appellant's second issue is overruled.
In her third issue, Appellant argues that Chandler's removal of her registration sticker from the inside of her car amounted to an unlawful seizure.
The Fourth Amendment protects against unreasonable searches and seizures. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). The capacity to claim the protection of the Fourth Amendment depends upon whether the person has a legitimate expectation of privacy in the invaded place. Id. While searches conducted without a warrant are unreasonable per se,seizing contraband in plain view does not run afoul of the Fourth Amendment because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. See id.
A seizure of an object is lawful under the plain view doctrine if (1) the law enforcement official lawfully is in a place where the object can be viewed plainly, (2) the incriminating character of the object in plain view is immediately apparent to the official, and (3) the official has the right to access the object. See Keehn v. State
, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).
Here, the record reflects that Chandler lawfully initiated a traffic stop of Appellant's vehicle. See State v. Alderete
, 314 S.W.3d 469, 472 (Tex. App.-El Paso 2010, pet. ref'd) (); see also TEX. TRANSP. CODE ANN. §§ 502.475 (West Supp. 2019) (displaying fictitious or altered registration insignia), 545.051 (West 2011) (driving on right side of roadway). Furthermore, Chandler was permitted to approach Appellant's vehicle to request information from her. See Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (). Thus, we conclude that Chandler lawfully was standing beside Appellant's vehicle during a routine traffic stop. See Keehn, 279 S.W.3d at 334.
The record further supports that Chandler immediately recognized the incriminating character of the registration sticker. At trial, he testified that when he first observed Appellant's vehicle, he noticed that the registration sticker was "absolutely fake." See TEX. TRANSP. CODE ANN. § 502.475(a)(4) (fictitious registration sticker); see also Fictitious, RANDOM HOUSE WEBSTER'S COLLEGE DICTIONARY 494 (1991) (). Further, during the traffic stop, he described the numbers on the sticker as having been altered with a ball point pen. See, e.g., TEX. TRANSP. CODE ANN. § 502.475(b) ().
Lastly, the record supports that Chandler had the right to access the altered registration sticker he observed partially attached to the inside of the windshield of Appellant's vehicle.5 The automobile exception to the warrant requirement in the Fourth Amendment to the United StatesConstitution permits officers to conduct a warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime. See Liffick v. State
, 167 S.W.3d 518, 520 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (citing Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S. Ct. 1975, 1979-80, 26 L. Ed. 2d 419 (1970); Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994); Amos v. State, 819 S.W.2d 156, 160-61 (Tex. Crim. App. 1991)); see also Borne v. State, 593 S.W.3d 404, 416 (Tex. App.-Beaumont 2020, no pet.). A warrantless search of an automobile based on probable cause is justified under the United States and Texas Constitutions because a vehicle can be quickly moved out of the location or jurisdiction in which the warrant must be sought, making obtaining a warrant impractical. See Liffick, 167 S.W.3d at 521 (citing Scott v. State, 531 S.W.2d 825, 827 (Tex. Crim. App. 1976)). Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if (1) it is readily mobile and (2) there is probable cause to believe that it contains contraband. See Keehn, 279 S.W.3d at 335. There are two justifications behind this exception. Id. First, the "ready mobility" of a vehicle creates an exigency. Id. Second, an individual has a reduced expectation of privacy in a vehicle because it is subject to pervasive government regulation. Id.
Here, the record supports that Appellant's vehicle was readily mobile. Chandler testified that he saw her driving the vehicle on the wrong side of the highway against the flow of...
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