Opinion
No. 11-10-00244-CR
08-23-2012
STANLEY PRICE PARSON A/K/A STANLEY PRICE PERRIN, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 9235-D
OPINION
The jury convicted Stanley Price Parson a/k/a Stanley Price Perrin of driving while intoxicated, enhanced by two prior convictions for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). During the punishment phase, appellant pleaded not true to two enhancement allegations. The jury found both enhancement allegations to be true and assessed appellant's punishment at confinement for thirty years. The trial court sentenced appellant accordingly. Because we conclude that the trial court erred by denying appellant's motion to suppress, we reverse and remand.
Issues Presented
Appellant presents three issues for review. In his first issue, appellant contends that the trial court erred by denying his motion to suppress that was based on the contention that the police lacked reasonable suspicion to stop him. In his second issue, appellant contends that the trial court erred by overruling his objection to the prosecutor's comment during closing argument on his post-arrest silence. In his third issue, appellant contends that the trial court erred by denying his motion for new trial that was based on allegations of ineffective assistance of counsel.
Factual and Procedural Background
Appellant filed a pretrial motion to suppress the evidence, asserting that the arresting officer lacked reasonable suspicion to justify the stop. The trial court held a hearing on the motion. Abilene Police Officer Randy Brown was the sole witness at the suppression hearing.
Officer Brown testified that, on May 31, 2009, he was working as a patrol officer. At about 7:00 p.m. on that date, Officer Brown was dispatched to a domestic disturbance call at 2842 South 5th Street. During questioning by the prosecutor, Officer Brown testified about the information that he received from his dispatcher:
Q. Okay. And did the dispatcher give you any other information about the circumstances surrounding this disturbance?At this point, appellant's counsel lodged a hearsay objection to Officer Brown's testimony. The trial court overruled the objection, and Officer Brown's testimony continued:
A. Yes. They informed me that the female calling in to report the disturbance was not at her residence. However, her two juvenile children were at the residence. She stated that information was relayed to her through her children that someone that she had had a relationship with in the past --
Q. So you would -- you were saying that there was enough information in the dispatch?The dispatcher gave Officer Brown a physical description of "Stanley" and informed Officer Brown that "Stanley" was in a dark-colored Chevrolet pickup, which was located "[d]irectly south of the residence." Officer Brown initially believed that the calling party's name was "Veronica," but he later learned that Monica Ramirez was the calling party.
A. That's correct.
Q. And what was that?
A. That a male by the name of Stanley was parked across from the residence backed into a driveway facing the residence, and the female calling party stated that she, because of her relationship with Stanley in the past, was afraid for her children's safety.
Officer Brown drove to the scene. As he turned onto South 5th Street from Mockingbird Street, he immediately saw a dark Chevrolet pickup that had been backed into and parked in a driveway that was across the street from Ramirez's house. The pickup was facing Ramirez's residence. Officer Brown saw a white male in the driver's seat of the pickup. Officer Brown testified that the man in the driver's seat was appellant. The fact that the pickup was facing Ramirez's house caused Officer Brown concern because he thought that appellant might be trying to "case the house" or to make a "speedy getaway" possible. Officer Brown testified that "[he] suspected that [appellant], in fact, was across the street from the residence, and because of [Ramirez's] information she had given over the telephone, that she did actually fear for her children's safety and that [appellant] was there to commit some sort of crime."
Officer Brown said that appellant looked at him and then drove his pickup out of the driveway. Appellant turned left onto South 5th Street and then immediately turned left onto Miller Street. Officer Brown followed appellant and activated his emergency lights on Miller Street. Appellant stopped his pickup. Officer Brown exited his patrol car and contacted appellant. Officer Brown testified that, before stopping appellant, he did not see appellant commit any kind of traffic violation or see appellant do anything that gave him a suspicion that appellant might be driving while intoxicated. Officer Brown testified that he stopped appellant based on the suspicion "that [appellant] was there to commit some sort of crime."
When he contacted appellant, Officer Brown observed that appellant had bloodshot eyes. Officer Brown testified that he smelled the odor of alcohol on appellant's breath. Officer Brown administered field sobriety tests to appellant and ultimately arrested appellant for driving while intoxicated.
After the suppression hearing, the trial court entered an order denying appellant's motion to suppress. The case proceeded to trial.
Ramirez was the State's first witness. Ramirez testified that she and appellant had previously been in a romantic relationship for almost two years. Ramirez said that she had ended the relationship with appellant in March 2009. She said that, while she and appellant were a couple, appellant stayed weekends at her house at 2842 South 5th Street. Ramirez said that, in May 2009, appellant was "madly in love with [her]" and wanted to get back together with her.
Ramirez testified that, on May 31, 2009, appellant lived in Eastland. Ramirez said that, on that date, appellant called her. Appellant wanted her to go to Eastland. Ramirez told appellant that she did not want to go to Eastland. At about 3:00 p.m. that day, Ramirez was with a friend at the mall in Abilene. At that time, Ramirez's seventeen-year-old son and her fifteen-year-old son were at her house. Ramirez testified that her sons called her and told her that appellant was outside her house. Ramirez said that she called the police because appellant was sitting outside her house waiting for her to get home and because she wanted appellant to leave. Ramirez testified that she was afraid of appellant and that she was nervous about him being outside her house. Ramirez and her friend went to the friend's house after they left the mall.
During cross-examination, Ramirez testified that appellant's presence outside her house made her more nervous than afraid. Ramirez said that, before May 31, 2009, she had never found it necessary to call the police on appellant. She said that she did not believe her call to the police on May 31, 2009, was a 911 call. Instead, she said that she called the non-emergency number. Ramirez said that appellant knew most of the people in her neighborhood. She said that Martin Deanda lived across the street from her and that appellant knew Deanda. Ramirez testified that appellant had never been violent to her children.
After Ramirez concluded her testimony, appellant re-urged his motion to suppress. Appellant's counsel argued that, based upon Ramirez's testimony, "[there was] no criminal activity afoot" and that, therefore, Officer Brown did not have reasonable suspicion to stop appellant. The trial court denied the re-urged motion to suppress.
Officer Brown also testified at trial. His trial testimony about the stop of appellant was consistent with the testimony he gave at the suppression hearing. The State offered the police video of the stop into evidence during Officer Brown's testimony. Appellant objected to the admission of the video and again re-urged his motion to suppress. The trial court admitted the video into evidence over appellant's objections.
Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). In reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review. Martinez, 348 S.W.3d at 922-23; Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). First, we afford almost total deference to the trial court's determination of historical facts and of mixed questions of law and fact that turn on the weight or credibility of the evidence. Martinez, 348 S.W.3d at 922-23; Lujan, 331 S.W.3d at 771. Where, as here, no findings of fact were requested or filed, we view the evidence brought forward at the suppression hearing in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App, 2010); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Second, we review de novo the trial court's determination of pure questions of law and mixed questions of law and fact that do not depend on credibility determinations. Martinez, 348 S.W.3d at 923. Thus, we review de novo the issue of whether the totality of the circumstances was sufficient to support an officer's reasonable suspicion to make a stop. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
Ordinarily, we consider only the evidence adduced at the suppression hearing in determining whether the trial court's decision on a motion to suppress is supported by the record because the trial court's ruling was based on it rather than evidence presented later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, where, as in this case, an appellant re-urges his motion to suppress following trial testimony, we may also consider relevant trial evidence in our review. Id.; Weaver v. State, 265 S.W.3d 523, 533, 535 n.4 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd).
Reasonable Suspicion
Under the Fourth Amendment, a warrantless detention of a person that amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). 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 to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Id. It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id. The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular noncriminal acts. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Moreover, the 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. A 911 police dispatcher is ordinarily regarded as a "cooperating officer" for purposes of making this determination. Id. Finally, information provided to police from a citizen-informant who identifies himself or herself and may be held to account for the accuracy and veracity of his or her report may be regarded as reliable. Id. at 914-15. In such a scenario, the only question is whether the information that the known citizen-informant provides, 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.
The facts invoked to justify an investigative detention must support more than a mere hunch or good-faith intuition that criminal activity is afoot. Id. at 916. To support a finding of reasonable suspicion, the specific facts articulated by the detaining officer must show some unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 348 S.W.3d at 923. However, there is no requirement that the officer suspect that a particular offense is being committed; it is enough if the facts suggest that something of a criminal nature is brewing. Derichsweiler, 348 S.W.3d at 916-17.
Analysis
The record shows that Officer Brown was dispatched to a disturbance call at 2842 South 5th Street. The dispatcher relayed the following information to Officer Brown: that Ramirez was not at her house; that appellant had backed his dark-colored Chevrolet pickup into, and had parked it in, a driveway across the street from Ramirez's house so as to be facing her house; that appellant was sitting in the pickup; that Ramirez had been in a relationship with appellant in the past; and that, because of that past relationship, Ramirez was afraid for her children's safety.
When Officer Brown turned onto South 5th Street, he saw appellant sitting in the driver's seat of a dark Chevrolet pickup that had been backed into and parked in the driveway across the street from Ramirez's house. Appellant saw Officer Brown and then drove his pickup out of the driveway, turned onto South 5th Street, and then immediately turned onto Miller Street. Officer Brown stopped appellant on Miller Street. Appellant did not commit any traffic violations before Officer Brown stopped him. Officer Brown did not stop appellant based on a suspicion that appellant was driving while intoxicated. Instead, Officer Brown stopped appellant because he suspected that appellant was going to commit a domestic disturbance crime.
The State did not present any evidence that appellant committed any crime before Officer Brown arrived at the scene or that appellant was committing a crime when Officer Brown arrived. Therefore, the issue in this case boils down to whether the reliable information known to the dispatcher and Officer Brown provided specific, articulable facts that, combined with reasonable inferences from those facts, would lead to the reasonable conclusion that appellant would soon be engaged in some type of criminal activity. Derichsweiler, 348 S.W.3d at 915-16.
The dispatcher did not testify, and the facts known to Officer Brown were very limited. Officer Brown testified that the dispatcher informed him that, "because of [Ramirez's] relationship with [appellant] in the past, [Ramirez] was afraid for her children's safety." These facts might support a mere hunch that criminal activity was afoot. However, the record does not contain evidence that Ramirez told the dispatcher any additional information, such as information about any prior acts committed by appellant or threats made by appellant, that may have given rise to a reasonable suspicion that appellant would soon be engaged in criminal activity. There was no evidence at the suppression hearing or at trial that appellant had ever harmed or threatened Ramirez or her children. Based on our review of the totality of the circumstances, including the lack of specific, articulable facts suggesting that criminal activity was afoot, we conclude that Officer Brown's detention of appellant was not supported by reasonable suspicion. Therefore, the trial court abused its discretion by denying appellant's motion to suppress.
We note that this case is factually distinguishable from Derichsweiler. In Derichsweiler, witnesses reported to the police that the defendant stopped his car beside theirs while they were in a McDonald's drive-through lane. Derichsweiler, 348 S.W.3d at 909. The defendant stared and grinned at the witnesses for thirty seconds to a minute before driving off. The witnesses reported that the defendant returned, stopped his car, and again stared and grinned at them. The defendant drove away, returned again, and the staring and grinning occurred a third time. Id. The defendant in Derichsweiler then left the McDonald's parking lot and drove into the parking lot of an adjacent Wal-Mart. Id. at 910. The witnesses saw the defendant stopping near parked cars in the Wal-Mart parking lot. Id.
Thus, in Derichsweiler, the defendant engaged in a pattern of suspicious behavior. The Court of Criminal Appeals characterized the defendant's conduct as "bizarre to say the least" and emphasized that the conduct involved "the repetition of similar, apparently scrutinizing behavior." Derichsweiler, 348 S.W.3d at 917. The Court of Criminal Appeals held "that the totality of the circumstances, including the appellant's strangely persistent, if admittedly noncriminal, behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity." Id. Even with the substantial amount of suspicious and bizarre activity that was present in Derichsweiler, the court stated that the reasonable suspicion issue was "admittedly a close call." Id.
This case involves substantially less suspicious activity than that involved in Derichsweiler. The evidence does not show that appellant engaged in a pattern or repetition of unusual or bizarre behavior. In this case, the circumstances known to the officers at the time of the stop were insufficient to create reasonable suspicion that appellant was about to engage in criminal activity.
Appellant's first issue is sustained. Having sustained appellant's first issue, we need not address his remaining issues. TEX. R. APP. P. 47.1.
This Court's Ruling
The judgment of the trial court is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.
TERRY McCALL
JUSTICE
Publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.