Thomas G. Thompson v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00097-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THOMAS G. THOMPSON, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Thomas G. Thompson was convicted of driving while intoxicated. In his sole issue, Appellant asserts that the trial court abused its discretion by overruling his motion to suppress. We affirm.

Background

On the evening of June 23, 2004, Appellant was driving a green Ford Explorer in Tyler, Texas. Another motorist called the police and reported that she was following a driver who was possibly intoxicated. According to the motorist, the driver she was following was driving erratically all over the road. The witness identified the vehicle she was following as a green Ford Explorer and gave the license plate number. She told the police that the vehicle was in the vicinity of Houston Street and Vine Avenue. This information was relayed by a police dispatcher to Officer Adam Tarrant of the Tyler Police Department. Officer Tarrant was already on patrol in the area and began searching for the green Ford Explorer.

While Officer Tarrant was searching for the Explorer, he was flagged down by a motorist who flashed her headlights to get his attention. She told him that [t]he car just went that away. He s all over the road. Concerned that a possibly intoxicated driver might get away, Officer Tarrant immediately continued his search, proceeding in the direction suggested by the motorist without obtaining the motorist s name or address.

Officer Tarrant soon came upon two green sport utility vehicles and conducted a simultaneous traffic stop. Appellant was driving one of the vehicles. After confirming that Appellant s license plate matched that of the vehicle initially described by the dispatcher, Officer Tarrant allowed the other vehicle to leave.

As Officer Tarrant approached him, Appellant stepped out of his vehicle. The officer noticed that Appellant was a little unsteady and smelled a moderate odor of alcohol on Appellant s breath. He asked Appellant if he had consumed any alcoholic beverages that night, and Appellant stated that he had not. Appellant did, however, admit that he had taken two prescription medications that day. He stated that one of the medications was Xanax and that the other was some form of antidepressant.

Officer Tarrant then asked Appellant to perform three field sobriety tests. Appellant complied and failed two of the tests. Based upon his training and experience, as well as the citizen reports of Appellant s driving, the odor of alcohol on Appellant s breath, Appellant s admitted consumption of prescription medications, and Appellant s failure of two of the three sobriety tests, Officer Tarrant determined that Appellant was intoxicated and placed him under arrest for driving while intoxicated.1 He then requested that Appellant submit to a blood test to determine his blood alcohol level. Appellant refused.

Appellant was indicted for driving while intoxicated. The charge was enhanced to a second degree felony based upon his three previous convictions for driving while intoxicated. Following a bench trial, the trial court found Appellant guilty. After an administrative transfer of his case, another trial court subsequently sentenced him to twelve years of imprisonment. This appeal followed.

Reasonable Suspicion

In his sole issue, Appellant challenges the trial court s denial of his motion to suppress.

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. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The identical amount of deference should be given to the trial court s rulings on application of law to fact questions, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Appellate courts review de novo mixed questions of law and fact not falling within this category. Id.

In accordance with these principles, de novo review is appropriate when an appellate court is presented with a question of law based on uncontroverted testimony and there is no indication that the trial court did not believe that testimony. State v. Ross, 32 S.W.3d 853, 857-58 (Tex. Crim. App. 2000). Here, Officer Tarrant s version of the facts was uncontroverted and the trial court s ruling was not contrary to his testimony. Thus, we review the trial court s application of the law concerning reasonable suspicion de novo, while affording almost total deference to the trial court s determination of the historical facts. See Guzman, 955 S.W.2d at 89. When, as here, the trial court does not make explicit findings of historical fact, we view the facts adduced in the light most favorable to the trial court s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

Applicable Law

Law enforcement officers may 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, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889.2 In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. Id., 392 U.S. at 27, 88 S. Ct. at 1883. Such an investigative detention is permissible when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, create a reasonable suspicion that the person detained is, has been, or soon will be engaged in criminal activity. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).

The existence of reasonable suspicion to support an investigative detention turns on the totality of the circumstances in each case. See Alabama v. White, 496 U.S. 325, 328-29, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990). Under this analysis, reasonable suspicion is dependent upon both the content of the information possessed by the officer and its degree of reliability. Id., 496 U.S. at 330, 110 S. Ct. at 2416. Both the quantity and the quality of the information are considered in this analysis. Id.

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. Id., 496 U.S. at 329, 110 S. Ct. at 2415. In most instances, there must be some further indicia of reliability from which a police officer may reasonably conclude that the tip is reliable and a detention is justified. See id., 496 U.S. at 329, 110 S. Ct. 2415-16. Where the information has a fairly low degree of reliability, more information will be required to establish the requisite level of suspicion necessary to justify an investigative detention. Id., 496 U.S. at 330, 110 S. Ct. 2416. Corroboration by the law enforcement officer necessarily goes to the quality, or reliability, of the information. State v. Sailo, 910 S.W.2d 184, 188 (Tex. App. Fort Worth 1995, pet. ref d). Where the reliability of the information is increased, less corroboration is necessary. White, 496 U.S. at 330, 110 S. Ct. at 2416. A detailed description of wrongdoing, along with a statement that the event was observed firsthand, entitles an informant s tip to greater weight than might otherwise be the case. Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983).

Corroboration 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. Brother, 166 S.W.3d at 259 n.5 (citing Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972)). 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 that an investigative detention is thus justified. Id. (citing White, 496 U.S. at 330-31). To require officers who are apprised of detailed facts from citizen-eyewitnesses to observe suspects and wait until additional suspicious acts are committed, would be foolish and contrary to the balance of interests struck in Terry and its progeny. Id. at 259 (citing Terry, 392 U.S. at 29).

Analysis

The investigation by Officer Tarrant began in the wake of a phone call from an unnamed concerned citizen. The information supplied by the citizen was very specific and detailed. She told the dispatcher that the driver she was following was possibly intoxicated and driving erratically all over the road. She also identified the vehicle she was following as a green Ford Explorer, gave the license plate number, and stated that the vehicle was in the vicinity of Houston Street and Vine Avenue.

Officer Tarrant also had a face to face encounter with a citizen3 who told him that [t]he car just went that away. He s all over the road. This citizen presented herself to Officer Tarrant while driving a car from which her identity might easily be traced, thus putting herself in a position to be held accountable for her statements to him. See Sailo, 910 S.W.2d at 188. Therefore, she is not properly classified as an anonymous tipster, and her tip deserves greater weight than an anonymous tip. See id. Further, this tip was an eyewitness account from an unpaid informant. Finally, Officer Tarrant testified that he detected nothing in the citizen s actions that would lead him to believe that she was unreliable.

Information from a citizen who confronts an officer in person to advise the officer that a designated individual in the near vicinity is committing a specific crime should be given serious attention and great weight by the officer. See United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978); Sailo, 910 S.W.2d at 188. Indeed, a person who is not connected with the police or who is not a paid informant is inherently trustworthy when he advises the police that a crime is being committed. Id. Thus, the reliability of the information is increased. Id.

Officer Tarrant was able to sufficiently corroborate these two tips when he observed Appellant s green Ford Explorer in a location consistent with the tips. See Sailo, 910 S.W.2d at 188-89. In light of the totality of the circumstances, this gave Officer Tarrant the particularized reasonable suspicion necessary to conduct the traffic stop of Appellant. See Sierra-Hernandez, 581 F.2d at 763; Brother, 166 S.W.3d at 254-60; Sailo, 910 S.W.2d at 188-89.

Because Officer Tarrant had the requisite reasonable suspicion to stop Appellant, the trial court did not abuse its discretion in denying Appellant s motion to suppress. We overrule Appellant s sole issue.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered April 18, 2007.

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

(DO NOT PUBLISH)

1 See Tex. Penal Code Ann. 49.04 (Vernon 2003).

2 Article I, section 9 of the Texas Constitution is coextensive with the Fourth Amendment of the United States Constitution regarding the standard applied to investigative detentions. Glover v. State, 870 S.W.2d 198, 199 n.1 (Tex. App. Fort Worth 1994, pet. ref d) (citing Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992)).

3 The record does not show whether the motorist who flagged down Officer Tarrant was the same person who had called the police earlier.