Opinion
No. 05-07-01494-CR
Opinion Filed February 9, 2009. DO NOT PUBLISH Tex. R. App. P. 47.2
On Appeal from the County Criminal Court No. 2, Dallas County, Texas, Trial Court Cause No. MA06-15078-B.
Before Justices BRIDGES, FITZGERALD, and LANG. Opinion By Justice LANG.
OPINION
Appellant James Ray Deeds III was charged with driving while intoxicated ("DWI"), second offense. Following the denial of his pretrial motion to suppress his "unlawful stop, detention, and arrest," appellant pleaded not guilty and was found guilty by a jury. Punishment was assessed by the trial judge at confinement in jail for one year, probated for two years, and a fine of $1200. In a single issue on appeal, appellant asserts the trial court erred in denying his motion to suppress. For the reasons below, we decide appellant's sole issue against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sergeant Matthew Palfreyman of the Balch Springs Police Department, the arresting officer in this case, was the only witness at the May 4, 2007 hearing on appellant's motion to suppress. Palfreyman testified at the suppression hearing that at approximately 2 a.m. on August 21, 2005, he was on routine patrol in the area of I-20 and Seagoville Road inside the city limits of Balch Springs in Dallas County. While driving in his patrol vehicle, Palfreyman noticed the driver of a "dark pickup" had turned on his hazard lights and was flashing his "high beams." Palfreyman testified he followed the driver of the dark pickup "to see what he was trying to get my attention for." According to Palfreyman:We went westbound 20 and took the exit ramp to northbound 635, and the [dark pickup] exited Lake June from northbound 635. When [the dark pickup] stopped at the red light, I pulled up to the driver's side of the vehicle and rolled down my passenger window so that I could talk to [the driver of the dark pickup]. He identified a red pickup truck that was turning westbound onto Lake June Road, and I don't recall the exact statement, but led me to believe that, based on the driving patterns that he had witnessed, that he believed the driver of the pickup truck to be intoxicated.At that point, Palfreyman "got behind" the red pickup and followed it for a short distance. The red pickup "never did break the lane of traffic, but it consistently weaved back and forth" in the lane. Palfreyman stopped the red pickup, which was driven by appellant. There was "a moderate odor of an alcoholic beverage coming from inside the vehicle." Palfreyman testified that appellant said when he was at a party he had consumed three beers and two shots of tequila and before the party he had two beers; that he had left the party around 10 or 10:15 p.m. and for the past four hours had been trying to drive home to Arlington. Palfreyman asked appellant to exit the vehicle and stand with his feet together and his hands at his sides. Palfreyman noticed "a definite sway." Appellant failed to follow these directions. The officer had to remind him "a number of times to stand that same way again." Appellant refused to perform the standardized field sobriety tests or answer further questions. Palfreyman placed him under arrest. Palfreyman further testified the witness in the dark pickup truck pulled up behind his patrol vehicle after appellant was stopped. At that point, the witness told the officer what had transpired. He said he called 9-1-1 from his cell phone, identified himself, and had been connected with "Duncanville PD." Before Duncanville officers could arrive, the witness and appellant had crossed into Dallas city limits. Duncanville PD connected the witness with "Dallas PD 911." About this time, the witness saw Palfreyman and signaled him. The witness also told the officer appellant "had almost struck his vehicle while they were traveling on eastbound I-20; and that he also observed [appellant's] vehicle weaving across all lanes of traffic; and that, at one point, he had observed [appellant] lose control of his vehicle and drive in the grass and then correct and get back on the freeway again." Palfreyman testified he stopped appellant "because I had the witness that had already flagged me down and advised me he thought the driver of that vehicle was intoxicated, and then I saw the weaving in the traffic lane." Additionally, Palfreyman stated the likelihood of encountering an intoxicated driver on the roadway is generally highest between the hours of 11 p.m. and 3 a.m. In his May 4, 2007 "Motion to Suppress Unlawful Stop, Detention, and Arrest," appellant asserted, in part, The officer who initially stopped and detained the Defendant did not have probable cause to stop and detain the Defendant in the first place, nor reasonable suspicion based on specific, articulable facts, to stop the Defendant in the first place. Because the officer did not have probable cause to stop and detain the Defendant, in the first place, the arrest was illegal; thus, the detention and arrest, and evidence of anything transpiring thereafter, is "fruit of the poisonous tree" by virtue of such illegal arrest, and is inadmissible. Weaving within ones [sic] own lane does not give rise to reasonable suspicion to pull over. Following the trial court's denial of appellant's motion to suppress, the case proceeded to jury trial on October 15, 2007. On that same date, appellant was found guilty by the jury and punishment was assessed by the trial court. Although a motion for new trial was filed by appellant, the record is silent as to the disposition of that motion. This appeal timely followed.
II. APPELLANT'S MOTION TO SUPPRESS
In his sole issue, appellant contends the trial court abused its discretion in denying his motion to suppress. Appellant asserts the officer who stopped him did not have reasonable suspicion to make the stop. Specifically, appellant argues "the officer relied on limited facts supplied by an unidentified eyewitness which were not adequately corroborated by the officer." Thus, appellant contends, the officer did not show specific, articulable facts to justify stopping him. Appellant asserts violation of his "rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution, Article I, section 9 of the Texas Constitution, and article 1.06 of the Texas Code of Criminal Procedure." The State responds that Palfreyman had reasonable suspicion to stop appellant based on the witness's face-to-face report combined with the time of the encounter and his own observations of appellant's driving.A. Standard of Review
We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Randolph, 152 S.W.3d at 769. We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also State v. West, 20 S.W.3d 867, 870-71 (Tex.App.-Dallas 2000, pet. ref'd) (where facts are undisputed, reviewing court applies de novo standard of review to trial court's ruling). Where, as here, the trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. Ford, 158 S.W.3d at 493. We will uphold the trial judge's decision so long as it is correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).B. Applicable Law
When a police officer stops a defendant without a warrant, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Ford, 158 S.W.3d at 492. Under the Fourth Amendment to the United States Constitution, an officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion of criminal activity, even if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)); see also May v. State, 780 S.W.2d 866, 869 (Tex.App.-Dallas 1989, pet. ref'd) (article I, section 9 of Texas Constitution does not impose greater restrictive standard than Fourth Amendment). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App. 2007); Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App. 2005); Woods, 956 S.W.2d at 38. In determining the existence of reasonable suspicion, "[w]e look only at those facts known to the officer at the inception of the stop-a stop or search unlawful at its inception may not be validated by what it turns up." State v. Griffey, 241 S.W.3d 700, 704 (Tex.App.-Austin 2007, pet. ref'd) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). The reasonableness of a temporary detention is examined in terms of the "totality of the circumstances" at its inception. See Woods, 956 S.W.2d at 38 (recognizing "there may be instances when a person's conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion"); Griffey, 241 S.W.3d at 703-04. The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information from another person. Brother, 166 S.W.3d at 257. The reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her. Id. at 258. A stop based on facts supplied by a citizen-eyewitness, which are adequately corroborated by the arresting officer, does not run afoul of the Fourth Amendment. Id. at 259. Corroboration does not mean that the officer must personally observe the conduct that causes him to reasonably suspect that a crime is being, has been, or is about to be committed. Id. at 259 n. 5 (citing Adams v. Williams, 407 U.S. 143, 147 (1972); Pipkin v. State, 114 S.W.3d 649, 654 (Tex.App.-Fort Worth 2003, no pet.)). "Rather, corroboration 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." Id. (citing Alabama v. White, 496 U.S. 325, 330-31 (1990); Pipkin, 114 S.W.3d at 654). Perhaps most importantly, a tip deserves great weight if the informant put himself in a position to be easily identified and held accountable for his intervention. See Mitchell v. State, 187 S.W.3d 113, 117 (Tex.App.-Waco 2006, pet. ref'd); Pipkin, 114 S.W.3d at 655; State v. Stolte, 991 S.W.2d 336, 341 (Tex.App.-Fort Worth 1999, no pet.).C. Application of Law to Facts
Appellant contends as follows:[U]nder the totality of the circumstances and reviewing only those facts known to [Palfreyman] at the inception of the detention, [Palfreyman] stopped [a]ppellant based solely on an indistinct tip from an unidentified witness and observing [a]ppellant weave within his lane. This was insufficient to establish reasonable suspicion that [a]ppellant was intoxicated or involved in any criminal activity.(citations omitted) (emphasis original). Appellant contrasts this case with Brother, in which the court of criminal appeals upheld a stop based on a citizen-informant's tip where the citizen-informant called 9-1-1 on her cell phone and reported witnessing "erratic driving" by defendant Brother, including "speeding, tailgating, and weaving across several lanes of traffic." Brother, 166 S.W.3d at 256. The citizen-informant continued to monitor Brother's driving by following Brother in her car and kept in contact with the 9-1-1 dispatcher until the arresting officer stopped Brother. Id. at 256-57. The citizen-informant testified at the suppression hearing that the dispatcher instructed her to follow Brother and activate her hazard lights so that the responding officer would be able to identify the correct vehicle. Id. at 257. In that context, the court of criminal appeals concluded, the officer did not need to personally witness the facts giving rise to criminal activity, and reasonable suspicion existed for the stop. Id. at 258-59. Appellant contends this case differs from Brother in that "the information provided by the citizen-informant before the stop in Brother far surpassed the quantity and quality of the information provided to [Palfryman]." According to appellant, "At most, [Palfryman] testified that the unidentified individual told the officer `something to the effect that he believed the driver of that red pickup truck to be intoxicated.'" Appellant asserts, "The unidentified individual gave no information or specific facts demonstrating criminal activity." In support of his argument, appellant repeatedly cites Griffey, which involved a report by a restaurant manager that a driver was "passed out behind the wheel in the drive-through." Griffey, 241 S.W.3d at 702. The responding officer found Griffey awake in her vehicle sitting next to the drive-through window. Id. The officer detained Griffey, who was subsequently placed under arrest for DWI. Id. at 703. Noting that the record did not reflect that the citizen-informant "ever reported that Griffey appeared intoxicated," the Austin Court of Appeals concluded In light of the lack of corroboration of the citizen-informant tip and the fact that [the responding officer] observed facts that actually contradicted the information in the tip, we hold that the manager's report that a driver was passed out behind the wheel in the drive-through lane, standing alone, was insufficient to establish reasonable suspicion that Griffey was intoxicated, obstructing a passageway, or involved in any other criminal activity at the inception of her detention. Id. at 707. Further, both parties cite Stolte in support of their arguments in their briefs before this Court. In Stolte, a citizen-informant told a police dispatcher by phone that he "had seen a driver who he suspected was intoxicated" traveling westbound in a particular location in a red and tan Chevrolet pickup. Stolte, 991 S.W.2d at 340. In addition, the citizen-informant provided the license plate number of the pickup. Id. at 339. After a police officer "confirmed that a pickup was located where the informant indicated, which matched the description and license plate given," defendant Stolte was stopped and subsequently arrested for DWI. Id. at 343. The trial court ruled the arresting officer lacked reasonable suspicion for the stop and granted Stolte's motion to suppress evidence obtained as a result of the stop. Id. at 339. On appeal, the Fort Worth Court of Appeals reversed the trial court's order. Id. The appellate court reasoned the following circumstances supported its decision to reverse the trial court: (1) because the informant had given the license plate number and a specific description of the suspect's vehicle and was continually updating the dispatcher as to the location of that vehicle, the responding officer had every reason to believe he was detaining the right person; (2) the informant put himself in a position to be held accountable for his intervention by calling police; (3) police were entitled to give greater weight to the informant's tip because he told the dispatcher he was personally watching the suspect and remained on the phone with police; and (4) the suspected offense involved an immediate threat to the public safety. Id. at 342-43. The appellate court concluded, "After considering the totality of the circumstances, we hold that the information from the unknown citizen-informant was sufficiently reliable to justify the investigative stop and had been adequately corroborated by [the officer] at the time of the detention." Id. at 343. In this case, the record shows the informant led Palfreyman to an intersection of 635 and Lake June Road, at which point the informant identified a red pickup "that was turning westbound onto Lake June Road" in Palfreyman's presence. Thus, Palfreyman had every reason to believe he was detaining the right person. See id. at 342. Palfreyman testified the informant stated he believed the driver of the red pickup "to be intoxicated." Further, the informant "led [Palfreyman] to believe" his report regarding suspected intoxication of the driver of the red pickup was based on driving patterns the informant had witnessed. See id.; see also Mitchell, 187 S.W.3d at 117 (statement that event was observed firsthand entitles unidentified informant's tip to greater weight). The record reflects no connection between the informant and the police. See Stolte, 991 S.W.2d at 341; see also Griffey, 241 S.W.3d at 704-05 (most reliable form of citizen-informant tip is information given by informant who has no other contact with police beyond witnessing act reported). Appellant asserts the informant in this case was "unidentified." However, the informant placed himself in a position to be "easily identified" and "held accountable" for his intervention by reporting to Palfreyman in person from his vehicle. See Mitchell, 187 S.W.3d at 117-18; Stolte, 991 S.W.2d at 342; see also Bilyeu v. State, 136 S.W.3d 691, 696 (Tex.App.-Texarkana 2004, no pet.) (information from unidentified citizen informant who approached officers in his vehicle was "significantly more reliable than a simple anonymous telephone call" because officers could have identified informant from license plates). Accordingly, the informant's report exhibited "heightened indicia of reliability." See Mitchell, 187 S.W.3d at 118; Stolte, 991 S.W.2d at 342. With respect to corroboration, the record shows that after receiving the informant's report, Palfreyman witnessed appellant "weave back and forth" within his traffic lane. That weaving "gave a small additional measure of corroboration" to the informant's report. See State v. Nelson, 228 S.W.3d 899, 904 (Tex.App.-Austin 2007, no pet.) (suspect's weaving from side to side in single lane of traffic corroborated report of possible drunk driver who was "all over the road"); Mitchell, 187 S.W.3d at 118 (suspect's weaving within lane corroborated unidentified citizen's report that suspect had almost sideswiped him and was possibly intoxicated); see also Reesing v. State, 140 S.W.3d 732, 737 (Tex.App.-Austin 2004, pet. ref'd) (police observation of suspect "pausing" while driving corroborated informant's report that appellant smelled strongly of alcohol). "Where the reliability of information is increased, less corroboration is necessary." Stolte, 991 S.W.2d at 341; see also Brother, 166 S.W.3d at 259 n. 5 (corroboration does not mean officer must personally observe conduct that causes him to reasonably suspect crime is being, has been, or is about to be committed). As stated by the court in Stolte, "[I]t would be wholly unreasonable, under these facts, to require a police officer to `corroborate' an informant's tip by waiting for the suspect to swerve out of his lane or otherwise jeopardize the safety of other drivers." Stolte, 991 S.W.2d at 343 n. 4 (emphasis original); see also Brother, 166 S.W.3d at 259. Finally, Palfreyman testified the likelihood of encountering an intoxicated driver on the roadway is generally highest between the hours of 11 p.m. and 3 a.m. The record shows the events at issue occurred at approximately 2 a.m. See Curtis v. State, 238 S.W.3d 376, 381 (Tex.Crim.App. 2007) (lateness of hour is to be considered in determining totality of circumstances with regard to detaining driver suspected to be intoxicated). Based on the totality of the circumstances in this case, including (1) the heightened indicia of reliability arising from the circumstances of the informant's report, (2) Palfreyman's observation of appellant weaving within the traffic lane, and (3) the lateness of the hour, we conclude Palfreyman had reasonable suspicion to stop appellant. Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's issue is decided against him.