James Robert McCarty v. The State of Texas--Appeal from County Court at Law of Erath County

11th Court of Appeals

Eastland, Texas

Opinion

James Robert McCarty

Appellant

Vs. No. 11-02-00003-CR -- Appeal from Erath County

State of Texas

Appellee

After the trial court denied his motion to suppress evidence, appellant pleaded guilty to the offense of driving while intoxicated pursuant to a plea bargain agreement. In accepting the plea bargain, the trial court granted appellant permission to appeal adverse rulings on pretrial motions. Appellant complains of the trial court=s denial of his motion to suppress in his sole issue on appeal. Specifically, he attacks the basis of the initial traffic stop which led to his arrest. We affirm.

Officer Orlando Gaitan of the Stephenville Police Department testified that he responded to a burglary alarm call at a local welding business at approximately 3:00 a.m. on May 26, 2000. Upon arriving at the business, Officer Gaitan discovered that a rock had been thrown against a window in a door causing the alarm to be activated. An inspection of the business revealed that a theft had not occurred. As he was leaving the business, Officer Gaitan observed a pickup being driven near the business. He testified that he did not see any other vehicles in the area at the time. Officer Gaitan observed two juveniles riding in the bed of the pickup. He recognized one of the juveniles as being a suspect in some other local burglaries. Officer Gaitan then stopped the pickup for investigative purposes in connection with the attempted burglary of the welding business. He subsequently determined that appellant was driving the pickup under the influence of marihuana.

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Cr.App.2002); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Cr.App.1991), cert. den=d, 510 U.S. 831 (1993). We give almost total deference to a trial court=s ruling on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor while we review de novo application-of-law-to-fact questions that do not turn upon credibility and demeanor. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Cr.App.2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997). Since the trial court did not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. See Maxwell v. State, supra at 281; State v. Ballard, 987 S.W.2d 889 (Tex.Cr.App.1999).

Both federal and state law permit police officers to stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 26 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex.Cr.App.1989). Accordingly, the individual officer must have a reasonable suspicion that Asome activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.@ Terry v. Ohio, supra at 21 22; Davis v. State, 947 S.W.2d 240, 244 (Tex.Cr.App.1997). An appellate court looks to the totality of the circumstances to determine whether a stop is supported by reasonable suspicion. United States v. Sokolow, 490 U.S. 1 (1989); Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997); Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Cr.App.1978). When viewed under the totality of the circumstances and in light of the officer=s experience, there must be particular facts and inferences rationally drawn from those facts that create a reasonable suspicion that criminal activity is afoot. Terry v. Ohio, supra at 27; United States v. Juvenile T.K., 134 F.3d 899, 902 (8th Cir. 1998); Woods v. State, supra at 38.

Under the totality of the circumstances presented to Officer Gaitan, a nine-year police veteran, we conclude that he had sufficient reasonable suspicion for making the initial traffic stop. The factors which he cited in justifying the stop included the time of day at which the incident occurred, the proximity of appellant=s pickup to the scene, and the absence of other persons in the area. Individually, these matters probably would not support a finding of reasonable suspicion. See Klare v. State, 76 S.W.3d 68, 73-75 (Tex.App. B Houston [14th Dist.] 2002, pet=n ref=d). However, courts have recognized that these matters are factors which a court may consider in determining if an officer=s suspicion is reasonable. See Klare v. State, supra. These factors, coupled with Officer Gaitan=s recognition of one of the pickup=s occupants as a suspect in other local burglaries, justified his investigatory stop of the pickup. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

March 6, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.