Poynor, Robert v. The State of Texas--Appeal from County Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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ROBERT POYNOR, ) No. 08-02-00084-CR

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Appellant, ) Appeal from

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v. ) County Court

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THE STATE OF TEXAS, ) of Andrews County, Texas

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Appellee. ) (TC# 01-0231)

O P I N I O N

Robert Britt Poynor appeals his conviction for the offense of driving while intoxicated, subsequent offense. A jury found Appellant guilty and the court assessed punishment at a fine of $1,000 and confinement for a term of one year, but the court suspended the sentence and placed Appellant on community supervision for two years. In a single point of error, Appellant challenges the trial court=s denial of his pretrial motion to suppress evidence. We affirm.

FACTUAL SUMMARY

Jodie Swafford, a travel agent who lives in Odessa, was driving to Brownfield to pick up her husband on the evening of May 29, 2001. At approximately 6 p.m., she was traveling northbound on Highway 385 in Andrews County when a green Chevy pickup passed her. As the driver passed her, he drove the pickup on the left hand shoulder before changing lanes and driving on the right shoulder. The driver swerved from left to right on the highway several times, sometimes driving on the median. Swafford traveled behind him for a while, expecting him to pull over. When he did not, she decided to call 911. She reported to an Andrews County female deputy sheriff what she had seen and provided a description of the vehicle and license plate. She also provided the deputy sheriff with her name and cellular phone number. The deputy sheriff instructed her to stay on the telephone until a state trooper pulled in behind the driver. A trooper pulled over the pickup and Swafford continued traveling but a police officer soon stopped her to verify her identity. Swafford later gave a written statement to the same trooper who had made the stop.

State Trooper James M. Fortenberry heard a radio report issued by the Andrews County Sheriff=s Office of a reckless or possibly intoxicated driver on Highway 385. Because he was in the area, Fortenberry responded to the call. He was given a description of the vehicle including its license plate number. Fortenberry located the vehicle and followed it for a few blocks. Fortenberry did not observe any erratic driving but stopped the pickup after verifying that he was following the correct vehicle. He stopped the pickup based solely upon Swafford=s report of erratic driving. After speaking with the driver, Appellant, Fortenberry noticed an odor of alcohol on his breath. Fortenberry performed the horizontal gaze nystagmus test and asked Appellant to perform other field sobriety tests. Based upon these tests, Fortenberry formed the opinion that Appellant was intoxicated and arrested him. In the truck, Fortenberry found two empty 16-ounce cans of Keystone Light beer, one half-full 16-ounce can of beer, and three unopened cans. Appellant refused to take a breathalyzer test. During a later interview, Appellant admitted that he had been drinking.

Appellant filed a written motion to suppress alleging that Fortenberry did not observe any traffic violations or erratic driving, and therefore, lacked probable cause or reasonable suspicion to justify the stop. At the suppression hearing, Appellant additionally argued that the stop was based on nothing more than an uncorroborated anonymous tip. The trial court denied the motion to suppress with a written order.

VALIDITY OF THE STOP

In his sole point of error, Appellant contends that the trial court erred in denying his motion to suppress because an anonymous tip is insufficient to justify the stop. We generally review a trial court=s ruling on a motion to suppress based upon an alleged lack of reasonable suspicion using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). Under this standard, we afford almost total deference to the trial court=s express or implied determination of historical facts and review de novo the court=s application of the law pertaining to search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327.

The sole issue in this case is whether the information relayed from Swafford to Fortenberry via the deputy sheriff dispatcher is legally sufficient to justify the investigative detention. Facts known by a police officer which fall short of probable cause for an arrest may still justify a temporary investigation or detention because such investigation or detention is a lesser intrusion on an individual=s privacy than an arrest. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988); Gaines v. State, 888 S.W.2d 504, 508 (Tex.App. -El Paso 1994, no pet.). In order to engage in a valid investigative detention, the officer must have specific, articulable facts which, in light of his experience and personal knowledge, taken together with rational inferences from these facts, reasonably warrant intrusion into the privacy of the individual stopped for such investigation. Glass v. State, 681 S.W.2d 599, 601 (Tex.Crim.App. 1984); Gaines, 888 S.W.2d at 508. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 39 (Tex.Crim.App. 1997). In such a case, the officer may investigate by stopping the individual in order to determine his identity, posing questions to him or detaining him briefly while attempting to obtain further information. Delk v. State, 855 S.W.2d 700, 710 (Tex.Crim.App.), cert. denied, 510 U.S. 982, 114 S. Ct. 481, 126 L. Ed. 2d 432 (1993); Gaines, 888 S.W.2d at 508.

As noted by Appellant, a tip by an unnamed informant of undisclosed reliability standing alone will rarely establish the requisite level of suspicion necessary to justify an investigative detention. State v. Stolte, 991 S.W.2d 336, 341 (Tex.App.--Fort Worth 1999, no pet.). However, a police broadcast, if based on reliable information furnished by an otherwise credible, known private citizen whose only contact with the police or criminal activity results from having witnessed a criminal act, may be sufficient to provide an officer with probable cause to stop persons matching the description for investigatory purposes. Esco v. State, 668 S.W.2d 358, 360 (Tex.Crim.App.1982); Gaines, 888 S.W.2d at 509. A detailed description of the wrongdoing, along with a statement that the event was observed firsthand, entitles an informant=s tip to greater weight. Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983); Stolte, 991 S.W.2d at 341. So does the fact that the person put himself in a position to be held accountable for his intervention. Stolte, 991 S.W.2d at 341. Furthermore, a person who is not connected with the police or who is not a paid informant is considered inherently trustworthy when he advises the police that he suspects criminal activity has occurred or is occurring. Stolte, 991 S.W.2d at 341.

Although Appellant relies on case law pertaining to anonymous tips, this case involves a tip provided by an eyewitness who identified herself to the police. Therefore, the cases cited by Appellant are inapplicable. Swafford called 911 and reported a green pickup truck being driven erratically on Highway 385. In addition to identifying herself, Swafford provided a description of the vehicle in question. Fortenberry heard the broadcast and stopped Appellant after verifying that he had found the correct vehicle. Even though Fortenberry did not observe Appellant commit any traffic violations or drive erratically and although Fortenberry had not personally learned the name of the tipster at the time he received the radio broadcast, the information relayed from Swafford to the Sheriff=s Department and then to the state trooper via the broadcast provided Fortenberry with reasonable suspicion to stop Appellant. See Stolte, 991 S.W.2d at 342 (police officer who stopped defendant for suspicion of driving while intoxicated on basis of information supplied by a cellular phone caller was justified in initiating an investigatory stop, even though officer did not know caller=s name where officer knew that standard procedure was for caller to stop behind patrol car and wait to be contacted); Glover v. State, 870 S.W.2d 198, 200 (Tex.App.--Fort Worth 1994, pet. ref=d)(even though officer had not seen defendant drive erratically, he had sufficient factual basis to stop defendant and investigate him for suspicion of driving while intoxicated where he had received tip from EMS technician who was later identified). The trial court properly denied the motion to suppress. Appellant=s sole point of error is overruled and the judgment of the trial court is affirmed.

January 30, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)