                            NUMBER 13-09-178-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


JOEY GARZA, JR. AKA JOEY A. GARZA                                 Appellant,
AKA JOEY GARCIA GARZA, JR.
AKA AMOUSE REYNA,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 156th District Court
                       of Live Oak County, Texas.


                        MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
                Memorandum Opinion by Justice Vela

      A grand jury indicted appellant, Joey Garza, Jr., for the offense of unlawful

possession of a firearm by felon, a third-degree felony. See TEX . PENAL CODE ANN . §
46.04(a)(1), (e) (Vernon Supp. 2009). Pursuant to a plea agreement,1 appellant pleaded

guilty to the primary offense and “true” to the enhancement allegation. The trial court

assessed punishment at eight years’ imprisonment, plus a $2,500 fine. Appellant raises

four issues for our consideration. We affirm.

                                   I. MOTION TO SUPPRESS EVIDENCE

        In his first issue, appellant contends that the trial court erred in denying his motion

to suppress in which he sought to suppress evidence of the firearms, which the police

seized from the vehicle he was driving.

A. Standard of Review

        In St. George v. State, the court of criminal appeals stated:

                Whether a specific search or seizure was reasonable is a mixed
        question of law and fact and is conducted de novo. We review a trial court’s
        ruling on a motion to suppress evidence under a bifurcated standard of
        review. We do not engage in our own factual review; rather, the trial judge
        is the sole trier of fact and judge of credibility of the witnesses and the weight
        to be given to their testimony. Trial courts are given almost complete
        deference in determining historical facts. We review the record to determine
        whether the trial court’s ruling is supported by the record and correct under
        some theory of law applicable to the case.

237 S.W.3d 720, 725 (Tex. Crim. App. 2007) (citations omitted). When, as in this case,

“a trial court makes explicit fact findings, the appellate court determines whether the

evidence (viewed in the light most favorable to the trial court’s ruling) supports these fact

findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review

“the trial court’s legal ruling de novo unless the trial court’s supported-by-the-record explicit

fact findings are also dispositive of the legal ruling.” Id.


        1
          On March 13, 2009, the trial judge signed a docum ent called “TRIAL COURT’S AMENDED
CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL” and placed his initials on the line corresponding
to the preprinted statem ent: “Is a plea-bargain case, but m atters were raised by written m otion filed and ruled
on before trail [sic] and not withdrawn or waived, and the defendant has the right of appeal.”
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B. The Evidence

       On October 4, 2008, George West police officer Jorge Medina stopped appellant

for speeding. Appellant could not produce a driver’s license or proof of insurance and had

no identification. When Officer Medina asked him for his name and birth date, he replied,

“Joey Garcia 02-16-1981” Officer Jason Lee, who had arrived at the scene, asked

appellant’s two passengers for appellant’s name, and they said it was Joey Garza. Hearing

this, Officer Medina again asked appellant for his name, and he said it was “Joey Garza,

Jr.” At that point, Officer Medina arrested him for failure to identify. While Officer Lee took

appellant to the county jail, Officer Medina searched the vehicle and seized a sawed-off

shotgun, a revolver, and an AK-47 from the trunk.

C. Applicable Law and Analysis

       Appellant contends (1) “he was illegally detained because the officer went beyond

detention to affect a bogus arrest,” and (2) “he was arrested for failing to properly identify

himself after extensive questioning, which exceeded the scope of the traffic stop.” A

person commits the offense of failure to identify “if he intentionally gives a false or fictitious

name, . . . to a peace officer who has . . . (2) lawfully detained the person . . . .” TEX . PENAL

CODE ANN . § 38.02(b), (2) (Vernon Supp. 2009). Thus, if appellant gave Officer Medina

a false or fictitious name while lawfully detained, then his arrest for failure to identify was

lawful and not “bogus.” See id.

       “Appellate courts review the legal determination of detention, reasonable suspicion,

and probable cause under the Fourth Amendment de novo while granting great deference

to a trial court’s factual findings.” State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim.

App. 2008). Routine traffic stops are analogous to investigative detentions and are

governed by Terry v. Ohio, 392 U.S. 1 (1968). Bracken v. State, 282 S.W.3d 94, 97 n.2
                                          3
(Tex. App.–Fort Worth 2009, pet. ref’d) (citing Berkemer v. McCarty, 468 U.S. 420, 439

(1984)). A Terry analysis has two inquiries: “(1) whether the officer’s action was justified

at its inception; and (2) whether it was reasonably related in scope to the circumstances

that justified the initial interference.”   Perales v. State, 117 S.W.3d 434, 438 (Tex.

App.–Corpus Christi 2003, pet. ref’d) (citing Terry, 392 U.S. at 19-20).

1. Whether Officer Medina’s Action was Justified at its Inception

        “As a general matter, the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has occurred.” Whren v.

United States, 517 U.S. 806, 810 (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim.

App. 2000). In this case, Officer Medina stopped appellant for speeding, a traffic violation

that occurred in his presence. Thus, the trial court could have reasonably found that

Officer Medina had probable cause for the traffic stop. See Perales, 117 S.W.3d at 439.

2. Whether Officer Medina’s Action was Reasonably Related in Scope to the
Circumstances Justifying the Interference in the First Place

       Under the second Terry inquiry, “an investigative detention must be temporary and

last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer,

460 U.S. 491, 500 (1983); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).

“Once an officer concludes the investigation of the conduct that initiated the stop, a

continued detention is permitted only if there is reasonable suspicion to believe another

offense has been or is being committed.” Saldivar v. State, 209 S.W.3d 275, 282 (Tex.

App.–Fort Worth 2006, no pet.) (emphasis in original). We have stated that, “[a]fter a bona

fide [stop] for speeding, an officer may then make an arrest if another offense is discovered

during the investigation.” Perales, 117 S.W.3d at 439. The United States Supreme Court

has refused to place any rigid time limits on Terry stops; “instead, the issue is ‘whether the

                                              4
police diligently pursued a means of investigation that was likely to confirm or dispel their

suspicions quickly, during which time it was necessary to detain the defendant.’” Kothe, 152

S.W.3d at 64-65 (quoting United States v. Sharpe, 470 U.S. 675, 685-86 (1985)).

       Here, Officer Medina requested appellant’s driver’s license and proof of insurance.

In a traffic stop situation, an officer may demand this information. Davis v. State, 947

S.W.2d 240, 245 n.6 (Tex. Crim. App. 1997). Appellant’s response to Officer Medina that

he did not have any identification gave Officer Medina reasonable suspicion to believe he

had committed another offense; i.e., failure to produce a driver’s license. See TEX . TRANSP .

CODE ANN . § 521.025 (Vernon 1999).2 When “an officer conducts a valid detention for

investigation and then develops a reasonable suspicion that the detainee is engaged in

criminal activity, continued detention is justified.” Perales, 117 S.W.3d at 439. During the

continued detention, Officer Medina asked appellant for: identification; ownership of the

vehicle; his destination; and the identity of the front-seat passenger. During a stop for a

traffic violation by the driver, officers may question the driver, request information on the

vehicle’s ownership, and ask about the driver’s destination and the trip’s purpose. Kothe,

152 S.W.3d at 63. The detaining officer may also ask the vehicle’s occupants their

identities and travel plans.          Id. at 64 n.36. Officer Medina arrested appellant upon

determining that he had given a false name. Thus, the evidence does not show that the

detention lasted longer than was necessary to effect the purpose of the stop and to

determine appellant’s true identity. See Royer, 460 U.S. at 500; Kothe, 152 S.W.3d at 63;

see Sharpe, 470 U.S. at 685-86 (declining to “establish a per se rule that a 20-minute


        2
         Section 521.025 of the transportation code provides for a driver’s license to be carried by the driver
while operating a m otor vehicle and exhibited upon dem and by a peace officer. See T EX . T RAN SP . C OD E A N N .
§ 521.025(a) (Vernon 1999). On the facts of this case, O fficer Medina had authority to request a driver’s
license. See Meeks v. State, 692 S.W .2d 504, 508 (Tex. Crim . App. 1985).
                                                        5
detention is too long” under Terry ).

          We conclude that Officer Medina diligently pursued a means of investigation that was

likely to either confirm or dispel his suspicions quickly, during which time it was necessary

to detain appellant. See Kothe, 152 S.W.3d at 64-65. The evidence does not show Officer

Medina was purposefully prolonging the detention or that the stop lasted longer than

necessary to effect the purpose of his investigation. Therefore, the investigative detention

was reasonably related in scope to the circumstances that justified the stop and detention

in the first place. See Terry, 392 U.S. at 29; St. George, 237 S.W.3d at 726; Kothe, 152

S.W.3d at 63. Viewing the totality of the circumstances in the light most favorable to the

trial court's ruling, we conclude that Officer Medina's actions were reasonable under the

circumstances, and that the detention as a whole was reasonable.

          By this same issue, appellant contends that he was illegally searched because no

probable cause existed. “A peace officer may arrest an offender without a warrant for any

offense committed in his presence or within his view.” TEX . CODE. CRIM . PROC . ANN . art.

14.01(b) (Vernon 2005). When a peace officer makes a lawful arrest, he may search, as

incident to that arrest, the person arrested. Chimel v. California, 395 U.S. 752, 763 (1969);

State v. Stauder, 264 S.W.3d 360, 364 (Tex. App.–Eastland 2008, pet. ref’d). Officer

Medina arrested appellant for failure to identify. Because appellant committed the offense

in Officer Medina’s presence, he could lawfully arrest him and search him incident to the

arrest.

          Appellant also argues “there was no consent given to search the vehicle.” A

defendant may have standing to challenge the determinative reasonableness of the seizure

involved in his own detention and yet lack standing to challenge a search of the vehicle he

was driving. Maysonet v. State, 91 S.W.3d 365, 374 (Tex. App.–Texarkana 2002, pet.
                                        6
ref’d).    The court of criminal appeals has stated that “[o]nly after a defendant has

established his standing to complain may a court consider whether he has suffered a

substantive Fourth Amendment violation.” Kothe, 152 S.W.3d at 59.3 “To challenge a

search, the defendant must have a legally protected right to the expectation of privacy.”

Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). In determining whether a

defendant has a reasonable expectation of privacy that government action has invaded, “we

ask whether the defendant had a subjective expectation of privacy in the place searched.

If the answer is yes, then we ask whether the defendant’s expectation of privacy is one that

society recognizes as reasonable or justifiable under the circumstances.” Id. at 925-26

(citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).

          Here, appellant told Officer Medina that the vehicle belonged to his mother. The

evidence did not show that appellant borrowed the vehicle from his mother or that he gained

possession of it from her with her consent or from someone authorized to give permission

to drive it. Appellant’s mother was not one of the passengers in the vehicle. We hold,

based upon these facts, that appellant did not have a reasonable expectation of privacy in

his mother’s vehicle and, therefore, lacks standing to challenge its search. See Matthews

v. State, 165 S.W.3d 104, 112 (Tex. App.–Fort Worth 2005, no pet.) (stating that a

defendant “has standing to challenge the search of a car he does not own if he shows that

he gained possession of the car from the owner with the owner’s consent or from someone

authorized to give permission to drive it”), see also Parker, 182 S.W.3d at 927 (stating that

a person has an “expectation of privacy in a car that he borrowed from his girlfriend”).



          3
          In Kothe, the court of crim inal appeals stated that an appellate court m ay raise the issue of standing
 on its own, and it m ay analyze that issue as a part of the Fourth Am endm ent claim presented. Kothe v. State,
 152 S.W .3d 54, 60 (Tex. Crim . App. 2004).
                                                        7
Therefore the trial court did not err in overruling the motion to suppress. The first issue is

overruled.

                                II. SUFFICIENCY OF THE EVIDENCE

       In his second issue, appellant challenges the sufficiency of the evidence to support

his conviction. “No trial court is authorized to render a conviction in a felony case,

consistent with Article 1.15, based upon a plea of guilty ‘without sufficient evidence to

support the same.’” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); see TEX .

CODE CRIM . PROC . ANN . § 1.15 (Vernon 2005). Evidence offered to support a guilty plea

may take many forms. Menefee, 287 S.W.3d at 13. The defendant may consent to the

proffer of evidence in testimonial or documentary form, or to an oral or written stipulation

of what the evidence against him would be, without necessarily admitting to its veracity or

accuracy. Id. This proffer or stipulation of evidence will suffice to support the guilty plea so

long as it embraces every constituent element of the charged offense. Id. The defendant

may also enter a sworn, written statement, or may testify under oath in open court,

specifically admitting his culpability or at least acknowledging generally that the allegations

against him are in fact true and correct. Id. So long as the judicial confession covers all of

the elements of the charged offense, it will suffice to support the guilty plea. Id.

       A person commits the offense of unlawful possession of a firearm by a felon when

he possesses a firearm after he has been convicted of a felony and before the fifth

anniversary of his release from confinement following conviction or his release from

supervision under community supervision, parole, or mandatory supervision, whichever date

is later. See TEX . PENAL CODE ANN . § 46.04(a)(1). Section 12.42(a)(3) of the penal code

provides, in relevant part, that “if it is shown on the trial of a . . . third-degree felony that the

defendant has been once before convicted of a felony, on conviction he shall be punished
                                          8
for a second-degree felony.” Id. § 12.42(a)(3) (Vernon Supp. 2009).

       After the trial court accepted appellant’s guilty plea to the primary offense and his

plea of “true” to the enhancement allegation, the trial court admitted into evidence the

stipulation of evidence, which is signed by appellant and sworn before the clerk of the

district court. The stipulation stated, in relevant part, that “I judicially confess to the following

facts and agree and stipulate that these facts are true and correct and constitute the

evidence in this case[.]” Appellant judicially confessed that on or about October 4, 2008,

he “did then and there, having been convicted of the felony offense of Theft, . . .

intentionally or knowingly possess[ed] a firearm before the fifth anniversary of [his] release

from confinement following conviction of said felony.” He also judicially confessed “that,

prior to the commission of the aforesaid offense, on the 30th day of July, A.D., 2007, . . .

[he] was convicted of the felony offense of Tampering with Government Records

Defraud/Harm.” The stipulation included Officer Medina’s police report, which described

the facts surrounding the stop of the vehicle driven by appellant, his arrest, and the

discovery of the weapons in the trunk. Because the stipulation of evidence embraced every

constituent element of the charged offense and the enhancement, it sufficed to support the

guilty plea and the plea of true. See Menefee, 287 S.W.3d at 13. Issue two is overruled.

                            III. DENIAL OF COMMUNITY SUPERVISION

       In his third issue, appellant contends that the trial court abused its discretion when

it denied his request for community supervision and imposed an eight-year prison sentence.

Article 42.12, section 3(a) of the code of criminal procedure broadly authorizes a trial judge,

after a guilty plea, to place an eligible defendant on community supervision whenever he

or she deems it “in the best interest of justice, the public, and the defendant” to do so. Ivey

v. State, 277 S.W.3d 43, 45 (Tex. Crim. App. 2009); see TEX . CODE CRIM . PROC . ANN . art.

                                                 9
42.12, § 3(a) (Vernon Supp. 2009). The granting of community supervision is a privilege,

not a right, and the decision to grant community supervision is wholly discretionary. Speth

v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999).           In reviewing a trial court’s

determination of the appropriate punishment in any given case, “a great deal of discretion

is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). It is “the general rule that as long as a sentence is within the proper range of

punishment it will not be disturbed on appeal.” Id. A trial court abuses its discretion only

if there is no evidence or factual basis for the punishment imposed. Id.

       Appellant pleaded guilty to unlawful possession of a firearm by a felon, which was

enhanced to a second-degree felony. The punishment range for a second-degree felony

is imprisonment for a term of not more than twenty years or less than two years, and a fine

not to exceed $10,000. See TEX . PENAL CODE ANN . § 12.33(a), (b) (Vernon 2003). The

punishment assessed by the court—confinement for eight years—is within the punishment

range established by the legislature for a person convicted of a second-degree felony. See

id. The stipulation of evidence included appellant’s judicial confession to the primary

offense and the enhancement allegation.          Because there is a factual basis for the

punishment imposed, we hold the trial court did not abuse its discretion by imposing an

eight-year prison sentence. See Jackson, 680 S.W.2d at 814. Issue three is overruled.

                           VI. CRUEL AND UNUSUAL PUNISHMENT

       In his fourth issue, appellant contends that the eight-year sentence violated the

Eighth Amendment prohibition against cruel and unusual punishment. See U.S. CONST .

amend. VIII. The Eighth Amendment does not require strict proportionality between the

crime and the sentence; rather, it forbids extreme sentences that are “grossly

disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23 (2003). The precise
                                            10
contours of the “grossly disproportionate” standard are unclear, but it applies only in

“exceedingly rare” and “extreme” cases. See Lockyer v. Andrade, 538 U.S. 63, 73 (2003).

Texas courts have traditionally held that, as long as the punishment assessed falls within

the punishment range prescribed by the legislature in a valid statute, the punishment is not

excessive. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v.

State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref’d); see also Escochea

v. State, 139 S.W.3d 67, 80 (Tex. App.–Corpus Christi 2004, no pet.).4

       Appellant’s sentence fell within the punishment range for a second-degree felony.

See TEX . PENAL CODE ANN . § 12.33(a). However, that does not end the inquiry. Texas

courts recognize that a prohibition against a grossly disproportionate sentence survives

under the federal constitution apart from any consideration whether the punishment

assessed is within the statute’s punishment range. Winchester v. State, 246 S.W.3d 386,

388 (Tex. App.–Amarillo 2008, pet. ref’d); Mullins v. State, 208 S.W.3d 469, 470 (Tex.

App.–Texarkana 2006, no pet.).

       This Court has recognized that “the viability and mode of application of proportionate

analysis . . . has been questioned since the Supreme Court's decision in Harmelin v.

Michigan, 501 U.S. 957 (1991).” Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett,

954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various opinions issued in Harmelin

and their impact on the Solem decision5)); see Sullivan v. State, 975 S.W.2d 755, 757-58

(Tex. App.–Corpus Christi 1998, no pet.) (discussing the implications of the Harmelin

opinion and reviewing the proportionality of defendant's sentence under the Solem and



        4
        Vera v. State, Nos. 13-05-169, 170-CR, 2006 W L 5181930, at *3 (Tex. App.–Corpus Christi Aug. 29,
2008, pet. ref’d) (m em . op., not designated for publication).

        5
            See Solem v. Helm, 463 U.S. 272 (1983).
                                                      11
McGruder tests). Assuming, arguendo, the viability of a proportionality review, as we did

in Sullivan, we will apply both the Solem and McGruder tests to the facts of this case. See

Sullivan, 975 S.W.2d at 757-58.6 In both Solem and McGruder, we look first at the gravity

of the offense and the harshness of the penalty. Solem v. Helm, 463 U.S. 272, 290-91

(1983); McGruder, 954 F.2d at 316.

1. Gravity of the Offense

       We judge the gravity of the offense in light of the harm caused or threatened to

society and the offender’s culpability. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.–Fort

Worth 2001, pet. ref’d) (citing Solem, 463 U.S. 291-92). With respect to appellant’s

culpability, the stipulation of evidence showed that Officer Medina found three firearms in

the trunk of the car that appellant was driving. Further, appellant judicially confessed to the

offense.

       With respect to the harm caused or threatened to society, the purpose of the offense

of unlawful possession of firearm by felon is to “prohibit all felons from possessing weapons

at any time at all places away from their residence.” State v. Mason, 980 S.W.2d 635, 638-

39 (Tex. Crim. App. 1998). We conclude that the gravity of the offense weighs in favor of

a finding that the punishment was not excessive. See Waddy v. State, 880 S.W.2d 458,

460 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d) (stating that “[a]nytime a person has

possession of a firearm, the threat to public safety remains . . . .”).

2. Harshness of the Penalty

       When conducting an Eighth Amendment proportionality analysis, we may consider

the sentence imposed in light of the accused’s prior offenses. Winchester, 246 S.W.3d at



        6
         See also McGiffin v. State, No. 13-05-561-CR, 2006 W L 2294553, at *1 (Tex. App.–Corpus Christi,
Aug. 10, 2006, no pet.) (m em . op., not designated for publication).
                                                  12
390; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d).

Appellant pleaded guilty to the third-degree felony offense of possession of a firearm by

felon. He pleaded “true” to the enhancement allegation, which elevated the punishment

range to a second-degree felony. In light of the seriousness of the crime to which appellant

pleaded guilty and the fact that he has a criminal history of two other felony convictions, we

cannot say his eight-year sentence is disproportionate to the offense. We therefore find

that his punishment is not grossly disproportionate to the offenses for which he was

convicted. This finding ends our analysis under McGruder. See McGruder, 954 F.2d at

316; see also Sullivan, 975 S.W.2d at 757. Because there is no evidence in the appellate

record of the sentences imposed for other similar crimes in Texas or for the same crimes

in other jurisdictions, we cannot perform a comparative evaluation using the remaining

Solem factors. See Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58.

Therefore, we hold that appellant's punishment is neither grossly disproportionate nor cruel

and unusual. We overrule issue four.

                                       V. CONCLUSION

       We affirm the trial court’s judgment.




                                                    ROSE VELA
                                                    Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed 25th
day of March, 2010.



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