                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00043-CR



       MICHAEL LYNN THOMPSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 16-0313X




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                       MEMORANDUM OPINION
        Julius Cox called the police after he saw that a truck, driven by Michael Lynn Thompson,

had backed into his mailbox and driven away. Eric Nieves, a trooper with the Texas Department

of Public Safety, was dispatched to investigate the call, and he spoke with Cox. Nieves quickly

found the truck, with Thompson behind the wheel, parked in a nearby driveway. Seeing several

signs that Thompson was intoxicated, Nieves arrested him on suspicion of driving while

intoxicated (DWI) and drove him to Good Shepherd Medical Center where his blood was drawn.

A laboratory analysis revealed Thompson’s blood to contain 0.274 grams of alcohol per 100

milliliters of blood, more than three times the legal limit. Thompson was charged with DWI, third

or more. A Harrison County jury found him guilty, and he was sentenced to twenty years’

imprisonment. See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2016).

        On appeal, Thompson contends that (1) the trial judge lacked the authority to preside over

the trial, (2) the trial court erred in denying his motion to suppress the evidence seized as a result

of his warrantless arrest, and (3) the trial court erred by restricting his voir dire of the jury panel.

        We affirm the trial court’s judgment because (1) the County Court at Law of Harrison

County had authority to try Thompson’s case, (2) the officer had probable cause to arrest

Thompson without a warrant, and (3) the trial court was within its discretion to deny additional

time for voir dire.




                                                   2
I.     The Trial Judge Had the Authority to Preside Over Thompson’s Jury Trial

       In his first point of error, Thompson contends that because the record is silent as to how

the judge of the County Court at Law of Harrison County came to preside over this trial in the 71st

Judicial District Court, the trial judge lacked “the power to preside over the jury trial.”

       Thompson’s indictment was presented to the 71st Judicial District Court of Harrison

County; pretrial matters, such as Thompson’s motion to suppress and the State’s motion for a

continuance, were heard by the Honorable Brad Morin, judge of the 71st Judicial District Court.

However, the case proceeded to jury trial before the judge of the County Court at Law of Harrison

County, the Honorable Joe Black, apparently sitting for the 71st Judicial District Court. The charge

of the court, the verdict form, and the punishment instructions are all signed by Judge Black. The

judgment of conviction emanated from the 71st Judicial District Court of Harrison County, but

was also signed by Judge Black.

       To the extent Thompson takes issue with the authority of the judge of the County Court at

Law of Harrison County to sit for the 71st Judicial District Court, we find no error. The County

Court at Law of Harrison County has concurrent jurisdiction with the 71st Judicial District Court

in felony cases other than capital murder cases. TEX. GOV’T CODE ANN. § 25.1042(a)(2) (West

Supp. 2016). In matters of concurrent jurisdiction, the judge of the county court at law may be

assigned a felony case, other than a capital murder case, by the 71st Judicial District Court. TEX.

GOV’T CODE ANN. § 25.1042(b) (West Supp. 2016). In any event, Thompson failed to object to




                                                  3
the exchange of benches in this case, so any complaint regarding the lack of an assignment

authorizing the exchange has not been preserved for our review.1

II.     The Trial Court Did Not Err in Denying Thompson’s Motions to Suppress

        In his second point of error, Thompson argues that the trial court erred in denying his

motions to suppress the evidence seized as a result of his arrest because the officer lacked probable

cause to arrest him.2

        We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review, giving almost total deference to the trial court’s determination of historical facts that turn

on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. See

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000). Appellate courts should also afford nearly total deference to

trial court rulings on application-of-law-to-fact questions (also known as mixed questions of law

and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts review

mixed questions of law and fact not falling within this category on a de novo basis. Id. We must

affirm the decision if it is correct on any theory of law that finds support in the record. Osbourn

v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).


1
 We are not presented with any issue concerning a lack of jurisdiction of the convicting court. Instead, any alleged
error involves statutory procedure. See Thull v. State, 963 S.W.2d 879, 881 (Tex. App.—Texarkana 1998, no pet.)
(citing Davis v. State, 956 S.W.2d 555, 557–58 (Tex. Crim. App. 1997)); see also Johnson v. State, 869 S.W.2d 347,
349 n.5 (Tex. Crim. App. 1994).
2
 Thompson’s one-sentence summary of the argument also maintained that the officer lacked a reasonable basis for
stopping and detaining Thompson, but the substantive argument and the authorities cited in this point of error focus
solely on whether the officer had probable cause to arrest Thompson.
                                                         4
       A warrantless arrest is “unreasonable per se unless the arrest fits into one of a ‘few

specifically defined and well delineated exceptions.’” Torres v. State, 182 S.W.3d 899, 901 (Tex.

Crim. App. 2005) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)).                  A law

enforcement officer may arrest a person without a warrant only if probable cause exists with

respect to that person and the arrest falls within one of the exceptions set out in Article 14.01 of

the Texas Code of Criminal Procedure. Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App.

1987). An officer has probable cause to make a warrantless arrest “if, at the moment the arrest is

made, the facts and circumstances within the arresting officer’s knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a prudent man in believing that the

person arrested had committed or was committing an offense.” Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009). “Probable cause deals with probabilities; it requires more than mere

suspicion but far less evidence than that needed to support a conviction or even that needed to

support a finding by a preponderance of the evidence.” Guzman, 955 S.W.2d at 87. “[I]t is clear

that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of

probable cause.’” Illinois v. Gates, 462 U.S. 213, 235 (1983).

       Nieves was the only witness to testify during the suppression hearing. Nieves was

dispatched to investigate a call that a possibly intoxicated driver had backed a truck into a mailbox.

The caller, Cox, described the suspect’s vehicle as a maroon and silver truck with a Texas license

plate with a possible plate number of GMZ 2411. The caller identified Thompson as the possible

driver. When Nieves arrived at the Cox residence, he spoke with Cox and their interaction was

recorded by Nieves’ dash camera. The dash camera recording was admitted into evidence and

                                                  5
played for the court. The recording captures the complainant telling Nieves that he saw the truck,

driven by Thompson, hit his mailbox and drive away. As Nieves was about to leave, he saw a

truck matching the description drive by, and he tried to catch up to it in order to continue his

investigation.

       When Nieves caught up to the truck, it was running, but parked in a driveway with

Thompson sitting behind the wheel. The truck had a Texas license plate, number GMZ 2459. He

believed the truck was the same one involved in damaging the mailbox. Nieves told Thompson,

“[W]e got a call that you hit the mailbox over there at [Cox’s] house.” Thompson responded,

“[Y]es,” but Nieves also told him that he “heard that [Thompson] had been drinking.” Thompson

denied having drunk anything, but Nieves noticed that Thompson “seemed very confused,” he had

a “little bit” of trouble with his balance, his speech was slurred, “he had red glassy watery eyes,”

and “his breath and/or person” smelled strongly of alcohol.

       Nieves administered a divided attention field sobriety test (the finger count), but Thompson

failed it. Nieves tried to administer the Horizontal-Gaze Nystagmus Test, but he could not

complete it because Thompson kept turning his head and would not follow Nieves’ finger with

only his eyes. Nieves did not have Thompson perform the walk-and-turn test or the one-leg stand

test because Thompson “was not wearing shoes and the way he was acting and speaking [Nieves]

didn’t feel comfortable putting him in a position where he could fall and hurt himself.” When

questioned by Nieves, some of Thompson’s responses were “down right incoherent.” Based on

the foregoing, Nieves believed that Thompson had been driving while intoxicated, and he placed

Thompson under arrest.

                                                 6
        Here, based on the facts and circumstances within Nieves’ knowledge, a reasonably

prudent person would believe that Thompson had committed or was committing the offense of

driving while intoxicated. See Amador, 275 S.W.3d at 878. Cox told Nieves that Thompson was

driving the truck that hit his mailbox, and Thompson’s truck matched the description given by

Cox. While Nieves was still at the Cox residence, the truck drove by the house. Nieves testified

that when he pulled up behind the parked truck, it was still running and Thompson was behind the

wheel. Therefore, it was reasonable to infer that Thompson had been driving the truck. When

Nieves approached and spoke with Thompson, he exhibited several signs of intoxication and either

failed or could not complete the field sobriety tests Nieves administered to him. Therefore, we

find that the trial court did not err in denying Thompson’s motion to suppress, and we overrule

this point of error.

III.    The Trial Court Was Within its Discretion to Limit Thompson’s Voir Dire

        In his final point of error, Thompson argues that the trial court abused its discretion by

limiting the duration of his voir dire examination of the jury panel.

        A trial court has broad discretion over the voir dire process, including setting reasonable

limits and determining the propriety of a particular question. Samaripas v. State, 454 S.W.3d 1, 5

(Tex. Crim. App. 2014). A defendant’s right to question jurors in order to intelligently and

effectively exercise peremptory challenges and challenges for cause must be harmonized with the

right of the trial court to impose reasonable restrictions on the exercise of voir dire examination.

McCarter v. State, 837 S.W.2d 117, 119–20 (Tex. Crim. App. 1992). When a defendant complains

of an inability to question the venire collectively, we apply a two-prong test: (1) whether the

                                                 7
defendant attempted to prolong the voir dire by asking questions that were irrelevant, immaterial,

or unnecessarily repetitious and (2) whether the questions the defendant was not permitted to ask

were proper voir dire questions. Id. at 120 (citing De La Rosa v. State, 414 S.W.2d 668, 670–71

(Tex. Crim. App. 1967)). Part of this analysis is whether counsel appropriately budgeted the time

allotted for voir dire. Whitaker v. State, 653 S.W.2d 781 (Tex. Crim. App. 1983).

       Here, the State and the defense each requested thirty-five minutes for voir dire, and the trial

court granted their requests. During his voir dire, the trial court advised Thompson’s counsel when

she had seven, five, and one minute remaining. Through voir dire, Thompson covered several

subjects with the venire panel, including (but not limited to) (1) bias or prejudice regarding DWI

charges, (2) their ability to be fair and impartial in light of their personal experiences, (3) their

feelings toward and experience with sobriety tests, (4) their opinions regarding a defendant’s Fifth

Amendment right against self-incrimination, (5) the meaning of reasonable doubt, (6) whether the

members of the panel believed that being arrested means someone is likely guilty, and (7) their

feelings regarding Mothers Against Drunk Driving.

       When the trial court informed Thompson’s counsel that she was out of time, she requested

more time, and the trial court agreed to give her “two more minutes and that’s it.” Counsel asked

whether anyone had “such a problem with alcohol that they would not be a fair and impartial

juror,” as well as follow-up questions to two potential jurors. Before her next question could be

answered, the following exchange took place:

                    (Bench conference out of the hearing of the venire panel.)

              THE COURT: I’ve given you two-and-a-half minutes. You’ve still only
       asked two questions.
                                                 8
                [Counsel for Thompson]: I have 188 questions.

                THE COURT: You’re not going to ask them. I’m going to allow you to
        ask a punishment question at this point and that’s it. Only ask the question and get
        responses. It’s not an ongoing discussion at this point. I’ve given you almost 40
        minutes for voir dire. So ask your punishment question only and you will sit down.
        Let’s go.

                              (Back in the hearing of the venire panel.)

                [Counsel for Thompson]: The law doesn’t require that you arrive at a
        verdict, only that you make a good faith effort to do so.
                So if after prolonged deliberations, some of you have an abiding belief that
        the verdict should be one way and others have an abiding belief it should be the
        other way, you-all do your duty by not deciding. Okay? You-all have to vote the
        same way. If you don’t all vote the same way, then it doesn’t work.

                THE COURT: [Counsel for Thompson], move a long to the questions that
        I ordered you to ask and let’s wrap this up, please . . . .

               [Counsel for Thompson]: Okay. But it is okay if y’all can’t decide one
        hundred percent. All right? That’s a hung jury. That’s perfectly fine. You all will
        have done your duty.

              THE COURT: [Counsel for Thompson], I’m not going to ask you again,
        ma’am, or you’re going to sit down.

               [Counsel for Thompson]: How many people believe that punishment
        should rehabilitate a person by a show of hands? Okay. What about deter them
        from doing another crime? What about just punishing them in general?
               Can anybody come up with a question that I haven’t asked but should have?
               [Addressing a specific venire person], I believe that you said that you had
        an experience with someone who had --

                 THE COURT: [Counsel for Thompson], have a seat, please . . . . Your voir
        dire is concluded.

        Thompson’s counsel objected to not being given more time to examine the panel, but the

trial court overruled her objection, stating in relevant part:

                                                   9
       Let the record reflect that voir dire for [Thompson’s counsel] started at 11:19 a.m.
       I gave each side 35 minutes. Her voir dire concluded at 11:54. I have gave
       warnings at seven minutes, five minutes, three minute, and one minute. Then the
       Court allotted [Thompson’s counsel] an additional eight minutes to where she
       ceased voir dire at 12:02. At which time she was not even one-third through her
       list of 188 questions.

The trial court admitted, as a record exhibit, a list of the 131 further questions that Thompson’s

counsel had intended to ask on voir dire.

       Here, Thompson’s counsel was not limited in the questions she could ask; rather, the trial

court was merely enforcing the previously established time limit that she, herself, had requested.

See Boyd v. State, 811 S.W.2d 105, 116 (Tex. Crim. App. 1991) (“Nothing in the record suggests

that the trial court abused its discretion in setting time limits and enforcing them against defense

counsel.”). Thompson’s counsel had the responsibility to gauge the subject matter at hand, weigh

the relative importance of the legal issues sought to be addressed during voir dire examination,

and then budget the time allowed by the trial court to cover those issues. See Whitaker, 653 S.W.2d

at 781; Splawn v. State, 949 S.W.2d 867, 872 (Tex. App.—Dallas 1997, no pet.). By engaging in

lengthy discussions of some issues at the expense of others, it appears that Thompson’s counsel

did not appropriately budget her time. See Whitaker, 653 S.W.2d at 781. Under these facts and

circumstances, we cannot conclude that the trial court abused its discretion by denying

Thompson’s counsel additional time. Accordingly, we overrule this point of error.




                                                10
      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      October 24, 2017
Date Decided:        October 25, 2017

Do Not Publish




                                                11
