Opinion
No. 06-16-00179-CR
03-31-2017
RICHARD LAWRENCE CHRISMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 5 Travis County, Texas
Trial Court No. C-1-CR-15-216169 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Richard Lawrence Chrisman was arrested for driving while intoxicated (DWI) following a traffic stop. Chrisman filed a motion to suppress evidence of his arrest. The sole issue at the suppression hearing was whether the officer who initiated the traffic stop had reasonable suspicion to detain Chrisman. The trial court overruled Chrisman's motion, after which he pled no contest to the DWI charge, was sentenced by the trial court to confinement in the Travis County Jail for a period of one year, and was ordered to pay a fine of $4,000.00. Chrisman contends the trial court erred in denying his motion to suppress. Finding no error in the suppression ruling, we affirm the trial court's judgment.
Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
The one-year sentence was suspended and Chrisman was placed on community supervision for a period of two years. Additionally, $3,700.00 of the fine was probated.
I. The Suppression Hearing
When Chrisman departed from Woody's Tavern at approximately 2:28 a.m. in what the tavern bartender described as a state of intoxication, the bartender called the Bee Caves Police Department. The bartender—whose attempt to persuade Chrisman to take a cab was rebuffed—reported to dispatch that Chrisman was driving a silver Lexus. Officer Kevin Hendricks of the Bee Caves Police Department received the report from dispatch at 2:28:52 a.m. Hendricks was advised that an intoxicated person was leaving Woody's Tavern, that the bartender attempted to get the individual a cab, and that the individual got into a silver Lexus passenger car and left the tavern.
Hendricks, who regularly patrols that area, was aware of the fact that Woody's Tavern closes the kitchen at 11:00 p.m., after which time they only serve alcohol. After he received the dispatch, Hendricks drove west in the direction of Woody's Tavern, located at Shops Parkway, a local business park. Hendricks arrived at the intersection of Highway 71 and Shops Parkway approximately thirty to forty-five seconds after he received the call from dispatch. He observed a silver Lexus passenger car at the intersection which matched the description of the vehicle identified by the bartender. There were no other cars on the road, and Woody's Tavern was the only business open in the business district at 2:30 a.m.
The Lexus accelerated across Highway 71 and continued northbound onto Bee Caves Road. Hendricks followed the Lexus as it turned into a neighborhood, and he initiated a traffic stop for a welfare check. Prior to stopping the driver of the silver Lexus, Hendricks was made aware of the name of the person who was allegedly driving the car. After Hendricks activated his overhead lights, but prior to approaching the Lexus, he was advised by dispatch of the registration and insurance information previously requested. Hendricks did not observe any traffic violations prior to activating his overhead lights.
As he approached the Lexus driven by Chrisman, Hendricks detected a strong odor of alcohol from inside the car. Chrisman's speech was slurred, he was unsteady on his feet and held onto the car for balance, and his eyes were watery and bloodshot. Hendricks determined that Chrisman was a good candidate for field-sobriety tests, but Chrisman refused all tests. Hendricks then placed Chrisman into custody and read him the DIC-24 form requesting a specimen of his breath, which was refused. After having interacted with Chrisman, Hendricks formed the opinion that Chrisman had lost the normal use of his mental and physical faculties and that he was driving while intoxicated.
A DIC-24 form is one provided by the Texas Department of Public Safety which contains the statutory admonitions to people who refuse a breath test, including the information that the person refusing to submit to such a test can jeopardize their driver's license.
Hendricks did not witness any erratic driving by Chrisman or see him commit any traffic offense prior to the stop. The sole basis for the stop was the information received in the call to dispatch. The Call Sheet Report, admitted as an exhibit at the suppression hearing, lists the caller's name as Tyler Wyatt. The report also lists the telephone number from which the call originated, and indicates that the call originated from "Little Woodrow," referred to at the hearing as Woody's Tavern.
Hendricks did not know the identity of the 9-1-1 caller. His sergeant, who was with Hendricks, went to Woody's Tavern after the arrest and spoke with Tyler Wyatt, the caller.
The trial court overruled Chrisman's motion to suppress and entered findings of fact and conclusions of law.
The trial court's findings of fact and conclusions of law follow:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A Motion to Suppress was heard on July 6, 2016. All parties and their attorneys were present. After considering the Defendant's Motion to Suppress, the evidence and the argument from counsel, the Court denied the Defendant's motion to suppress. The only issue raised was whether the officer had reasonable suspicion to stop the defendant to investigate the offense of driving while intoxicated. The Court's findings of fact and conclusions of law are as follows:
FINDINGS OF FACT
1. On October 28, 2015 Officer Kevin Hendricks was on duty in the City of Bee Caves as a police officer.
2. At 2:28:52 a.m. Officer Hendricks received a dispatch from a 911 operator of an intoxicated customer leaving Woody's Tavern.
3. The caller, who was a bartender, indicated that the intoxicated customer got into a silver Lexus passenger car and left the parking lot.
4. Officer Hendricks was on Highway 71 about a mile away from Woody's Tavern.
5. Officer Hendricks patrols the area and new [sic] the location of Woody's Tavern, so he headed westbound on 71 to Shops Parkway where the Woody's Tavern was located.
6. Officer Hendricks also new [sic] that Woody's Tavern stopped serving food at 11:00 p.m.; only alcohol was served thereafter.
7. Within 45 seconds, at the intersection of 71 and Shops Parkway he observed a silver passenger car. There were no other cars on the road.
8. Officer Hendricks observed the driver continue northbound on Shops Parkway and got behind the vehicle.
9. Officer Hendricks learned that the driver was a regular customer at Woody's and that he left the bar in his own car even though the identified caller had gotten the customer a cab.
10. Officer Hendricks heard this last dispatch simultaneously with turning on his overhead lights just 1 minute and 6 seconds after dispatch.
11. Officer Hendricks stopped the vehicle to investigate the offense of driving while intoxicated.
12. The driver of the vehicle, Richard Chrisman, rolled down his window and Officer Hendricks smelled a strong odor of alcohol.
13. Richard Chrisman had slurred speech, was extremely unsteady on his feet, had to hold on to the car for balance, and had watery, bloodshot eyes.
14. Chrisman admitted to drinking alcohol, but refused to say how much.
15. Chrisman had difficulty remembering the officer's request for his Texas Driver's License and getting it out of his wallet.
16. Officer Hendricks was certified to conduct the standard field sobriety tests.
17. Chrisman qualified for the standard field sobriety tests.
18. Officer Hendricks attempted to conduct the standard field sobriety tests, but Chrisman refused.
CONCLUSIONS OF LAW
1. The officer had reasonable suspicion of driving while intoxicated to stop the defendant's vehicle and detain him to investigate this offense.
2. The officer had probable cause to arrest the Defendant for driving while intoxicated.
II. Analysis
A. Standard of Review
"We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion." State v. Molden, 484 S.W.3d 602, 606 (Tex. App.—Austin 2016, pet. ref'd) (citing Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013)). Our standard of review is bifurcated—we accord almost total deference to the trial court's determination of historical facts that turn on credibility and demeanor, but review questions of law de novo. Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). We likewise review de novo any application-of-law-to-fact issues or mixed questions of law and fact which do not turn on witness credibility and demeanor. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). Consequently, we view the evidence in the light most favorable to the trial court's ruling. Molden, 484 S.W.3d at 606 (citing State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011)). We will uphold the trial court's ruling "if it is supported by the record and is correct under any theory of applicable law." Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015).
B. Applicable Law
Here, the trial court specifically concluded that Hendricks had a reasonable suspicion that Chrisman was driving while intoxicated sufficient to support the investigative detention. Chrisman claims, however, that this finding is incorrect because the caller's report of an intoxicated person leaving Woody's Tavern was too conclusory and required further corroboration to support an investigative detention.
Chrisman also disputes the accuracy of the trial court's tenth finding of fact (to the effect that Hendricks received information from dispatch that Chrisman was a regular customer at Woody's Tavern and that he left there in his own car after having refused a cab) at the same time Hendricks activated his overhead lights.
Because a routine traffic stop implicates the United States and Texas Constitutions, the traffic stop must be reasonable. Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984); see U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Bobo v. State, 843 S.W.2d 572, 574 (Tex. Crim. App. 1992) ("Circumstances short of probable cause for an arrest may justify a temporary investigation or detention because investigation is a lesser intrusion on personal security than an arrest.") (quoting Fatemi v. State, 558 S.W.2d 463 (Tex. Crim. App. 1977)). "A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity." Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Terry v. Ohio, 392 U.S. 1, 21-22 (1969)). "In determining whether an officer has reasonable suspicion to detain, we look at the totality of the circumstances through an objective lens, disregarding the officer's subjective intent." Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014).
C. Reasonable Suspicion
1. Reliability and Corroboration
Chrisman complains that Hendricks failed to corroborate the 9-1-1 caller's tip and did not observe Chrisman commit a traffic violation before the detention. Therefore, Chrisman contends, Hendricks lacked sufficient reasonable suspicion to detain him. We disagree.
Hendricks testified that he did not observe Chrisman commit a traffic offense prior to the stop. Nevertheless, "The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (citing Adams v. Williams, 407 U.S. 143, 147 (1972)). Indeed, the factual basis for stopping a vehicle "may be based on an informant's tip that bears sufficient 'indicia of reliability' to justify a stop." Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); see State v. Fudge, 42 S.W.3d 226 (Tex. App.—Austin 2001, no pet.). Here, the factual basis for Hendricks' stop arose from the information received from the 9-1-1 call to dispatch by the bartender at Woody's Tavern, who identified himself as Tyler Wyatt, stated that he was the bartender at Woody's Tavern, and provided his telephone number. Consequently, we consider as reliable the information Wyatt provided to the dispatcher. Derichsweiler, 348 S.W.3d at 914-15 ("[I]information provided to police from a citizen-informant who identifies himself and may be held to account for the accuracy and veracity of his report may be regarded as reliable.") Yet, Chrisman complains that Hendricks did not adequately corroborate this information.
"[C]orroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is thus justified." Brother, 166 S.W.3d at 259 n.5. "An inverse relationship exists between the reliability of the informant and the amount of corroborated information required to justify the police intrusion; the less reliable the tip, the more information is needed." Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). Where, as here, the informant identifies himself and makes himself "accountable for the intervention," his degree of reliability "significantly improves," thereby requiring a lesser degree of corroboration. Id. at 923-24.
We further recognize that the law imputes to Hendricks the entirety of the information Wyatt relayed to the 9-1-1 dispatcher. "[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, 'the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.'" Derichsweiler, 348 S.W.3d at 914 (footnotes omitted) (citations omitted) (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). Moreover, a police dispatcher is regarded as a "cooperating officer" for purposes of making this determination. Id. Consequently, we consider all of the information provided by Wyatt to the dispatcher, regardless of the precise time that information was passed along to Hendricks. Because "it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction," Id. at 916, we examine the totality of the circumstances to determine whether Chrisman's detention was justified. Stated differently, we must determine whether the information provided by Wyatt, when "viewed through the prism of the detaining officer's particular level of knowledge and experience, objectively supports a reasonable suspicion to believe that criminal activity is afoot." Id. at 915 (citation omitted); see Matthews, 431 S.W.3d at 603.
Here, Hendricks was informed that an intoxicated bar patron left Woody's Tavern at approximately 2:28 a.m. in a silver Lexus after he had been refused further alcohol and after he had rejected an offer to call for a taxi in lieu of driving. Hendricks regularly patrolled the area around the tavern and was familiar with the area. Less than a minute after receiving the dispatch, Hendricks spotted a silver Lexus matching Wyatt's description at the intersection of Highway 71 and Shops Parkway where Woody's Tavern was located. It was the only vehicle observed on the road at the time. To the extent independent corroboration of the information provided by Wyatt was required, this information is sufficient to do so. See Brother, 166 S.W.3d at 258-59.
2. Conclusory Statements
Chrisman claims that the information provided by Wyatt was nevertheless conclusory and, thus, insufficient to support reasonable suspicion, in reliance on Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). In Ford, the detaining officer testified that he stopped Ford because he "saw a maroon GMC or Chevy utility vehicle following a white car, following too close." Id. at 491. The officer further testified that he was directly behind Ford when he "noticed this vehicle." Id. This was the only testimony describing the circumstances resulting in the stop. The Texas Court of Criminal Appeals determined that such testimony was "only with a conclusory statement that Ford was violating a traffic law" and that in the absence of "specific, articulable facts," the objective reasonableness of this opinion could not be assessed, Id. at 493. Therefore, the court held that the trial court erred in denying Ford's motion to suppress. Id. at 494.
Unlike this case, Ford did not involve a tip from a known informant. Instead, the officer's conclusory testimony that Ford was following too closely was not a substitute for specific, articulable facts. Id. at 493. Here, Wyatt's statement that Chrisman was intoxicated could be viewed as conclusory, if it had not been supported by other evidence that would permit the trial court to determine that Hendricks' detention of Chrisman was objectively reasonable.
Nacu v. State, 373 S.W.3d 691 (Tex. App.—San Antonio 2012, no pet.), offers guidance on this issue. In Nacu, a restaurant manager observed Nacu disturbing other restaurant customers after the restaurant employees refused to serve Nacu any further alcohol. Id. at 692-93. After a customer informed the manager that Nacu was leaving the restaurant in her car, the manager ran outside where she observed a police car in an adjacent parking lot. Id. at 693. The manager told the officer, "[A] woman had been in my restaurant, I noticed her to be intoxicated and she had gotten in a car." Id. The manager pointed out Nacu's car to the officer and stated that it was "that vehicle trying to drive between the two metal poles." Id. Nacu almost hit the poles as she passed between them. Id. The officer followed Nacu's vehicle and followed her a short distance to another parking lot where Nacu stopped. Id. Nacu was ultimately arrested for driving while intoxicated. Id. The officer testified that he did not personally observe Nacu commit any traffic violation and that the sole basis for his traffic stop was the manager's statement that Nacu "was too intoxicated to drive." Id. The trial court denied the motion to suppress. Id.
Our sister court observed that,
Absent any context, [the manager's] statement that Nacu was "too intoxicated to drive" is conclusory. However, [the manager's] explanation that the driver of a vehicle had previously been in her restaurant, was intoxicated, and trying to drive through metal poles too narrow to accommodate a car, gave [the officer] specific,
articulable facts that would allow a reviewing court to determine whether Nacu's detention was objectively reasonable.Id. As in Nacu, Wyatt's report to the dispatcher here provided context for the statement that Chrisman was intoxicated. Wyatt reported to the dispatcher that Chrisman was a regular customer at Woody's Tavern and that he had been refused service due to intoxication. After having been refused service, the customer, described as an "older male," was offered a cab. The customer refused the offer of a cab and drove off in a "highly intoxicated" state in a silver Lexus. From this information, the dispatcher could reasonably have inferred that Wyatt interacted with Chrisman while Chrisman was at Woody's Tavern or while he was leaving and that Wyatt had perceived signs of Chrisman's intoxication. The dispatcher also knew that Chrisman had been refused further service at Woody's Tavern, because he was intoxicated to the point that Wyatt offered Chrisman a cab. Hendricks had seven years' experience with DWI investigations, had worked in the area around Woody's Tavern before, and was also aware of the fact that Woody's Tavern served only alcohol after 11:00 p.m. Given the fact that this report was made after 2:00 a.m., it was all the more likely to be true.
Based on the totality of the circumstances, the reliability of Wyatt's information, and Hendricks' knowledge of the area and experience as a police officer, we hold that Hendricks had reasonable suspicion to detain Chrisman.
III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley
Justice Date Submitted: January 9, 2017
Date Decided: March 31, 2017 Do Not Publish