No. 05-02-01040-CR
Opinion Filed May 19, 2003 Do Not Publish
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB01-26998-H. AFFIRMED
Before Chief Justice THOMAS AND Justices BRIDGES and BUTTS.
The Honorable Shirley W. Butts, Justice, Fourth Court of Appeals, San Antonio, Texas, Retired, sitting by assignment.
Opinion By Justice Butts.
A jury convicted James Arthur Virgoe of the offense of driving while intoxicated. The trial court sentenced him to 120 days' confinement in jail and a $750 fine, but granted community supervision for two years. Appellant argues the court erred by not granting the motion to suppress the evidence, in violation of appellant's rights under the United States Constitution, Texas Constitution, and article 38.23 of the code of criminal procedure. We affirm the judgment.
Background
Appellant moved the court to suppress the evidence obtained as a result of a stop by the police. Rick White testified he was a youth minister at Spring Creek Community Church. On the night of February 10, 2001, he left church late and was driving home when he noticed someone following him. He drove toward Garland on the George Bush Turnpike, and the same car continued to follow him closely, at times tailgating him. White would slow down and then go faster. The other car did the same, staying close behind him. White testified he became very concerned and suspicious. He drove into his neighborhood and pulled into his own driveway. The other car followed him into his driveway, stopping next to him. White quickly backed out, blocking in the other car. White testified a man was exiting the car with a "confused look" on his face when White backed out. White wrote down the license number and description of the other car, a Honda. He then called the police on his cell phone. White said he drove away from his house fearing that his family might be in danger. He drove back onto the George Bush Turnpike, all the while talking on his phone to the Garland police department dispatcher. He reported the Honda was following him again on the almost-deserted road. White relayed to the dispatcher their location on the turnpike. The dispatcher told White that police officers were dispatched "to get this guy off his tail." As instructed, White exited at Brand Road. There, a police backup unit met him while a second patrol car pursued the Honda, which had not exited. On cross-examination, White said the other driver followed him several miles to his house and at times drove in different lanes. He said he felt threatened. He told the police the driver was a "darker individual, not African-American." White said he talked with the dispatcher about ten to fifteen minutes. He did not identify appellant or the car after appellant's arrest. Shawn Roten, a Garland police officer, testified he was in field training with police officer Scott Lichtenberg that night. It was after 10:00 p.m. when they were dispatched to a "suspicious vehicle" call. The dispatcher gave them White's description of the car and license number. The officers drove onto the George Bush Turnpike, saw the westbound Honda, and stopped it. The Honda matched the description given to them by the dispatcher, except that it was black, not dark green. Roten testified the in-car video was running. The prosecutor introduced the video and it was admitted into evidence. Roten confirmed he had not talked with White and did not know his credibility or reliability. He said White talked with the other officers in the backup unit and gave them "contact information." The court found "that the officer had reasonable suspicion to detain the defendant and further investigate in this instance." When, as here, no findings of fact are filed, we view the evidence in the light most favorable to the court's ruling and sustain it if it is correct on any applicable theory of law. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000); Graham v. State, 893 S.W.2d 4, 7 (Tex.App.-Dallas 1994, no pet.). "Reasonable suspicion," with a lesser standard than probable cause, applies only to brief detentions. The Supreme Court described this practice as a necessary tool to aid law enforcement in preventing imminent crimes and stopping ongoing crimes, as well as lending protection to officers and others in potentially threatening situations. See Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). A police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. Id. at 35. The officer must be able to point to specific articulable facts which, taken together with rational inferences, reasonably warrant the intrusion. Terry, 393 U.S. at 21; Woods, 956 S.W.2d at 38. In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court observed that when detention is based upon conduct by the suspect, it is clear that the conduct itself need not be unlawful or in some sense inconsistent with innocence. Sokolow, 490 U.S. at 10. The inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular types of noncriminal acts. Id. The principle applies equally to probable cause and reasonable suspicion. Id. The Woods court stated "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." Woods, 956 S.W.2d at 38. The inquiry then is whether appellant's conduct, viewed in light of the totality of the circumstances, gave rise to reasonable suspicion. In conducting this review, we give almost total deference to the trial court's determination of historical facts and application of law to fact questions that turn on credibility and demeanor, and review de novo application of law questions that do not turn upon credibility and demeanor. See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Whether the officer's suspicion is reasonable depends on both the context and the reliability of the information presented to the officer. Here, White telephoned the Garland police, identifying himself and describing appellant's behavior in following him to his home and again following him after he left. He gave the police dispatcher a description of the Honda, the man driving it, the license number, and the exact location of both cars. White and the dispatcher continued to talk, and the dispatcher relayed the information to the patrol officers. As the result of White's report, one patrol car was dispatched to stay with White as he exited onto Brand Road and the other one to apprehend appellant on the turnpike. White remained with the backup unit officers. He testified at both the suppression hearing and the trial on the merits. Because White identified himself by name to the police dispatch operator, and because within minutes he was joined on Brand Road and his identity confirmed by Garland police patrol officers, he was not an anonymous informant. "Where a named informant is a private citizen whose only contact with the police is a result of having witnessed a criminal act by another, the credibility and reliability of the informant is inherent." Esco v. State, 668 S.W.2d 358, 360-61 (Tex.Crim.App. 1982). The same rationale applies when the defendant's conduct is the basis of the citizen-informant's concern voiced to the police. See State v. Fudge, 42 S.W.3d 226, 232 (Tex.App.-Austin 2001, no pet.) (detention upheld based on cab driver's personal report about defendant's erratic driving); State v. Stolte, 991 S.W.2d 336, 342-43 (Tex.App.-Fort Worth 1999, no pet.) (traffic stop justified on tip from informant who reported erratic driving, called police on cell phone, followed suspect vehicle, and waited at scene when stop made). The citizen-informant's tip is a valid basis for the officer's investigatory stop when the informant can be held responsible for the information. See Fudge, 42 S.W.3d at 232; State v. Garcia, 25 S.W.3d 908, 913 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A firsthand account and detailed description of activity increases reliability. In the present case, White felt threatened by the suspicious conduct of the person in the pursuing Honda. He was not only a citizen-informant, he believed he was the intended victim. White held himself accountable by continuing his reports to the police and identifying himself for purpose of testifying at the motion to suppress hearing and trial on the merits. Based on all of the collective information provided, the officer had reasonable suspicion, supported by articulable facts, when viewed in the light of the total circumstances, to detain the person whose conduct appeared threatening and suspicious. The trial court correctly concluded the evidence showed the police officer had reasonable suspicion as his basis for the investigatory stop of appellant's car. Therefore, the court correctly overruled appellant's motion to suppress. We resolve appellant's issue against him.