Charles Gibbs v. State
Charles Gibbs v. State
Opinion
Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. (1)
Appellant Charles Gibbs appeals his conviction of driving while intoxicated by contending that the trial court erred in failing to grant his motion to suppress. We affirm the judgment of the trial court.
We review the trial court's ruling on a motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give almost total deference to the trial court's findings of historical fact and review de novo its application of the law to the facts. Id. at 89.
Officer Nathan Anderson, the only witness at the suppression hearing, testified that he stopped appellant's vehicle because appellant was driving with a flat tire and the officer had observed appellant drive on the wrong side of the road on a residential street. Appellant argues that the stop was illegal because the videotape from the officer's vehicle does not show that he was driving on the wrong side of the road and that driving with a flat tire is not a violation of the Transportation Code. (2)
The officer stated that the video camera in his vehicle does not start until he activates his emergency lights, which he did not do until after he had observed appellant driving on the wrong side of the street. Thus, because there was no videotape to corroborate the officer's testimony, it was for the trial court to judge the credibility of the officer and determine the truthfulness of his observation of that particular traffic offense. (3) See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (holding that at a suppression hearing, the trial court is the sole trier of fact and the judge of the credibility of the witnesses and the weight to be given their testimony). A law enforcement officer may lawfully stop the driver of a vehicle who commits a traffic violation, Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992), and observation of a traffic offense in an officer's presence gives an officer sufficient authority for an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). Therefore, if the trial court believed the officer's testimony, which it obviously did, this basis alone was sufficient to justify the stop and precludes our having to determine whether driving with a flat tire violates the Transportation Code.
Accordingly, the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 2005).
2. Section 547.004 of the Transportation Code makes it an offense to operate a vehicle that is unsafe so as to endanger a person, and section 548.604(a)(2) of the Transportation Code makes it an offense to operate a motor vehicle that is in a mechanical condition that endangers a person.
3. Appellant does not contest that driving on the wrong side of the road constitutes a traffic offense.
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NO. 07-10-00134-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 14, 2010
IN THE MATTER OF THE MARRIAGE OF DAVID MICHAEL LITTLE AND CHARLENE MCDOWELL LITTLE
FROM THE 85TH DISTRICT COURT OF BRAZOS COUNTY;
NO. 07-002205-CVD-85; HONORABLE J. D. LANGLEY, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ABATEMENT AND REMAND
Appellant Charlene McDowell Little appeals from the final judgment of the trial court. The clerks record was filed on April 5, 2010. The reporters record was due on April 8, 2010. Neither the reporters record nor an extension motion was filed. By letter of April 28, we directed the court reporter to advise the Court of the status of the reporters record on or before Monday, May 10, 2010. Despite this letter and efforts by appellants counsel,[1] we have received no response from the deputy reporter who took the record.
It is the duty of the trial court to ensure that its reporters work is timely accomplished by setting work priorities. Tex. R. App. P. 13.3. Accordingly, we abate this appeal and remand the cause to the 85th District Court of Brazos County (the trial court) for further proceedings. On remand, the trial court shall immediately cause notice of a hearing to be given and thereafter conduct a hearing to determine:
(1) The reason for the lack of response from the reporter who took the record; and,
(2) When the reporters record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving appellant of her right to appeal.
The trial court shall cause the hearing to be transcribed. Also, it shall: (1) execute findings of fact and conclusions of law addressing the foregoing issues; (2) cause to be developed a supplemental clerks record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) cause to be developed a reporters record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court shall then file the supplemental clerks and reporters records transcribing the hearing with the clerk of this court on or before July 14, 2010.
It is so ordered.
Per Curiam
[1] The record was not taken by the trial courts official reporter. Appellants counsel has informed us he twice has attempted to contact, by telephone, the deputy reporter who took the record and has mailed her two requests to prepare the record. He advises us he has received no response.
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