State of Texas v. Rebecca Ann Magar--Appeal from County Court at Law No 2 of Smith County

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NO. 12-01-00077-CR










Appellee Rebecca Ann Magar was charged by complaint and information with the misdemeanor offense of driving while intoxicated ("DWI"). Appellee filed a motion to suppress evidence, which the trial court granted. The State of Texas appeals the trial court's ruling. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2002). We reverse and remand.


In her motion to suppress, Appellee alleged that she was illegally detained without reasonable suspicion that she was engaged in criminal activity and arrested without an arrest warrant or probable cause. Appellee requested that the trial court suppress all evidence seized.

The evidence presented at a pre-trial hearing on Appellee's motion to suppress evidence showed that on October 30, 2000, Tyler Police Officer Mark Lane was dispatched to Whataburger restaurant on a suspicious person call. Whataburger employees had reported an individual, whom they suspected to be intoxicated, driving a red Isuzu pick-up for which they provided a license plate number. Officer Lane, who was the sole witness at the suppression hearing, testified that the police department was frequently dispatched to various Tyler fast food restaurants on similar calls.

When Officer Lane arrived at Whataburger, he found a red Isuzu pick-up bearing the reported license plate number. The pick-up was parked in a parking space with the engine running, and Appellee, the sole occupant of the vehicle, was eating a hamburger. Officer Lane testified that he informed Appellee why he was contacting her and asked her for identification. Officer Lane noticed that Appellee's speech was slurred and her movements were slow and deliberate as she looked through her purse for her driver's license. Officer Lane asked Appellee to step out of the pick-up.

Officer Lane testified that when Appellee got out of the vehicle, she almost fell down. Though Officer Lane did not notice an odor of an alcoholic beverage on Appellee's breath, he asked her to submit to various field sobriety tests because her responses to his prior questions had been slow and she seemed "sluggish." First, Officer Lane administered the Horizontal Gaze Nystagmus ("HGN") test which Appellee passed. Next, Officer Lane administered the one leg stand test which Appellee was unable to perform due to her inability to balance on one foot. Then, Officer Lane administered the nine-step walk and turn test. Appellee was unable to walk a straight line, took the wrong number of steps, and did not step heel-to-toe as instructed. Finally, Officer Lane asked Appellee to recite the alphabet. Appellee recited the alphabet correctly to "M," then said, "E," and asked if she could start over. Based upon Appellee's performance, Officer Lane formed the opinion that Appellee was intoxicated due to the ingestion of alcohol or some other substance and that she had lost the normal use of her mental and physical faculties. Officer Lane then arrested Appellee for DWI.

At the conclusion of the hearing, the trial judge stated:


[T]he court considering the totality of the circumstances still has to look at the charge. The charge was driving while intoxicated. I didn't hear any evidence whatsoever that would put this woman out on the road in that car, not anyone who saw her operating the motor vehicle at any time. And I think that would have to come first before anything else. She was behind the wheel of a vehicle where the motor was running. I don't even know if she was in the driver's seat or not. Maybe she was. Maybe she wasn't. I don't know whether inquiries were made as to whether she had been driving, where she had been, did she come back, et. cetera. I'm granting the motion.


Subsequently, the trial judge signed an order suppressing all evidence and testimony arising from Appellee's detention and arrest.

In its sole issue on appeal, the State contends that the trial court abused its discretion by granting Appellee's motion to suppress based on the fact that there was no evidence presented to show that Appellee was driving or operating a vehicle in a public place. Appellee did not file a brief.

Standard of Review

In reviewing a trial court's ruling on a motion to suppress, an appellate court should generally afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate courts should afford the same amount of deference to trial courts' rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. For example, where the only evidence presented at a suppression hearing is the testimony of the arresting officer which, if believed, adds up to probable cause, and the trial court grants the motion without any explanation, there is not necessarily a "concrete" set of historical facts to which an appellate court may apply the law de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). In such a case, the proper standard of review is "almost total deference" to the trial court's ruling. Id. Conversely, when the ruling is on application of the law to a fact question that does not depend upon an evaluation of credibility and demeanor, we review the trial court's decision de novo. See Guzman, 955 S.W.2d at 89.

In this case, the trial court made oral findings of fact in support of its ruling. The trial judge stated on the record that she was granting Appellee's motion to suppress because there was no evidence that Appellee was driving or operating a vehicle in a public place. There was no indication that the trial court did not believe any part of Officer Lane's testimony. Compare State v. Nash, 55 S.W.3d 110, 114 (Tex. App.-Austin 2001, no pet.)(applying almost total deference standard where it was clear from the tone of the trial court's findings that the trial court disbelieved the officer's testimony even though the trial court made no finding on dispositive issue); State v. Boone, 45 S.W.3d 743, 745-46 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd)(applying almost total deference standard where trial court made findings but not on dispositive issue). Therefore, because the facts which the trial court expressly found to be the dispositive facts were uncontroverted, and because the trial court's ruling is based specifically on those uncontroverted facts and does not turn on an evaluation of the credibility or demeanor of the officer, we review the trial court's ruling de novo. See Ross, 32 S.W.3d at 858.

Constitutional Prohibition Against
Unlawful Search and Seizure

In her motion to suppress evidence, Appellee claimed she was detained without the requisite reasonable suspicion to justify an investigative detention and arrested without a warrant or probable cause. The Fourth Amendment to the United States Constitution provides:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.


U.S. Const. amend. IV. The Texas Constitution also provides certain guarantees against unreasonable searches and seizures:


The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


Tex. Const. art. I, 9. No evidence seized in violation of any laws or provisions of the United States Constitution or the laws or provisions of the Texas Constitution shall be admissible in any criminal prosecution. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2002).

However, not all interactions between police officers and citizens implicate the U.S. and Texas Constitutions. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16, 20 L. Ed. 2d 889 (1968). There are three recognized categories of interaction between the police and citizens: encounters, investigative detentions based on reasonable suspicion, and arrests based on probable cause. See Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996)(Baird, J., concurring as to judgment, dissenting as to dismissal of review). Only detentions and arrests amount to "seizures" of persons, and, thus, require a certain objective level of suspicion. Id. An encounter is not a seizure and requires neither reasonable suspicion nor probable cause.


An officer may approach a citizen without reasonable suspicion or probable cause to ask questions and even to request consent to search. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). While a law enforcement officer is free to approach a citizen and ask questions, the citizen is also free to not answer the questions. Id. A seizure occurs only if a reasonable person would not feel free "to disregard the police and go about his business." California v. Hodari, D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1551-52, 113 L. Ed. 2d 690 (1991).

In the instant case, Officer Lane did not stop Appellee. Appellee's vehicle was already parked in a parking space when Officer Lane arrived at the scene. Officer Lane approached Appellee and asked for identification. At this point in the interaction between the officer and Appellee, nothing had occurred which would cause a reasonable person to believe that she was not free to leave. Therefore, we hold that Officer Lane's initial interaction with Appellee was an encounter, requiring no reasonable suspicion or probable cause.

Investigatory Detention Based on Reasonable Suspicion

We must next consider whether Officer Lane developed reasonable suspicion to detain Appellee during the encounter. A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. See Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A reasonable suspicion means more than a mere hunch or suspicion. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. See id.

While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. See Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990). There must be some further indicia of reliability, some additional facts from which a police officer may reasonably conclude that the tip is reliable and a detention is justified. See id. Corroboration by the law enforcement officer of any information related by the informant may increase the reliability of the information. See State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.-Fort Worth 1995 pet ref'd). However, "corroboration" in this sense 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. See id. at 189. 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. See id. If a tip has a relatively low degree of reliability, more corroboration will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. Alabama, 496 U.S. at 330, 110 S. Ct. at 2416. Conversely, where the reliability of the information is increased, less corroboration is necessary. See id.

The fact that Officer Lane encountered Appellee in the Whataburger parking lot eating a hamburger in a vehicle matching the description given by the caller and bearing the license plate number described gave some indicia of reliability to the anonymous tip. (1) However, we need not decide whether such corroboration alone was sufficient to rise to the level of reasonable suspicion because, in this case, the officer developed reasonable suspicion based on what happened during the encounter. When Officer Lane asked Appellee for identification, he noticed that Appellee's speech was slurred and her movements were slow and deliberate as she looked through her purse for her driver's license. We hold that, at that point, Officer Lane had reasonable suspicion to justify an investigative detention of Appellee based on his personal observation of her seemingly impaired condition.

Probable Cause to Arrest

We must next consider whether Officer Lane developed probable cause to arrest Appellee after he had detained her. A warrantless arrest for a misdemeanor, such as the DWI offense charged here, is unlawful unless the offense is committed in the view or in the presence of the arresting officer. Tex. Code Crim. Proc. Ann. 14.01 (Vernon 1977). Because no officer saw Appellee driving, a warrantless arrest for DWI would not have been proper. Jones v. State, 949 S.W.2d 509, 515 (Tex. App.-Fort Worth 1997, no pet.). Nevertheless, where there is sufficient evidence to support a finding of probable cause to arrest an individual for the offense of public intoxication committed in the officer's presence, the arrest is not invalid simply because the officer labels the offense "driving while intoxicated." See, e.g., Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. [Panel Op.] 1982); Jones, 949 S.W.2d at 515-16.

A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. Tex. Pen. Code Ann. 49.02(a) (Vernon Supp. 2002). At the suppression hearing, Appellee did not dispute that Whataburger is a public place. When Officer Lane arrived at Whataburger, he found Appellee sitting in the vehicle reported to have been driven by a suspected intoxicated driver. After interacting briefly with Appellee, Officer Lane formed the opinion that Appellee was intoxicated. Officer Lane's investigation revealed that (1) Appellee's speech was slurred and her movements were slow and deliberate; (2) Appellee almost fell down when she got out of the vehicle; (3) Appellee's responses to his questions were slow, and she seemed "sluggish"; (4) Appellee passed an HGN test, but failed three other field sobriety tests; (5) Appellee was unable to perform two of the tests due to poor balance; and (6) Appellee was in a public parking lot. Officer Lane could have reasonably inferred that Appellee posed a danger to herself because she nearly fell and that Appellee posed a danger both to herself and to others because she would have driven or walked from the scene in an intoxicated state. See Segura v. State, 826 S.W.2d 178, 185 (Tex. App.-Dallas 1992, pet. ref'd). We hold that under these circumstances, Officer Lane had sufficient probable cause to believe that Appellee was intoxicated and that she posed a danger to herself and to others as a result of her intoxication.


Officer Lane's initial contact with Appellee was not an investigative detention but an encounter. During that encounter, Officer Lane developed reasonable suspicion to detain Appellee. Based on his investigation during the detention, Officer Lane developed sufficient probable cause to arrest Appellee for public intoxication. Therefore, we hold that the trial court erred in granting Appellee's motion to suppress. The State's issue is sustained.

The trial court's order granting Appellee's motion to suppress is reversed and the cause is remanded for further proceedings.





Opinion delivered February 28, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


1. Where a named informant is a private citizen whose only contact with the police results from having witnessed a criminal act committed by another, the credibility and reliability of the information is inherent. Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1982). It appears from the prosecutor's comments in the record that another Tyler Police Department officer went into Whataburger to attempt to contact the caller or callers. However, that officer did not testify, so we must treat the call as an anonymous tip for purposes of our analysis.