Susan H. Terrell v. State , 2015 Tex. App. LEXIS 7903 ( 2015 )

Affirmed and Opinion filed July 30, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00390-CR
SUSAN H. TERRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 11
Harris County, Texas
Trial Court Cause No. 1927250
OPINION
Appellant Susan H. Terrell appeals her misdemeanor conviction for driving
while intoxicated (DWI). After the trial court denied her motion to suppress
evidence, appellant pleaded guilty. The trial court then found her guilty and
sentenced her to one year in jail, probated for one year, and a $200 fine. In four
issues, appellant asserts that the trial court abused its discretion in denying her
motion to suppress because she was illegally detained, the detaining officer did not
have a reasonable suspicion appellant had committed or was about to commit a
crime, the court did not have sufficient facts before it to support the conclusion that
appellant had committed, was committing, or was about to commit a crime at the
time of her detention, and the detaining officer had no authority to detain appellant
for a traffic violation that the officer did not witness and had no proof occurred
within the jurisdictional limits of her police force. We affirm.
Background
During the hearing on appellant’s motion to suppress, Richard Bruton
testified that on October 31, 2013, he was driving in his pickup truck when
appellant bumped the rear of his vehicle with her Lexus as he was pulling up to an
intersection. He said that he knew that there was no damage to his truck because
they “barely bumped” and his truck had a trailer hitch. Bruton indicated to
appellant to “back off,” and appellant waved her hand in a manner that indicated
she had hit Bruton. Bruton continued on his way, but appellant began to follow
him. He first drove to meet his wife; appellant followed him and parked behind
him for ten minutes while he waited for his wife. After Bruton’s wife came out
and got into her own vehicle, Bruton proceeded again and appellant continued
following him. Eventually, Bruton decided to call the Tomball Police Department.
The police dispatcher instructed Burton to drive to a nearby police station.
Officer Kristina Tikal of the Tomball Police Department also testified at the
hearing. She stated that she heard the police dispatcher’s side of the conversation
with Bruton because she was standing beside the dispatcher during the
conversation. A tape recording of the conversation was played at the hearing.
During the conversation, the dispatcher can be heard to ask, “[s]he ran into you?”
Later in the recording, the dispatcher states, apparently to Tikal, that the caller has
an “erratic female” following him, “[s]he bumped his vehicle. She was following
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him too close.”1 The dispatcher further explained that the woman had been
following the driver through town and was still following him. Tikal testified that
when she went outside to meet the caller in the parking lot, she observed Bruton
pull into the parking lot with appellant “immediately after him very close tailgating
his vehicle.” As Bruton drove around the horseshoe driveway, appellant followed
him and then stopped when he stopped.
Tikal knocked on appellant’s window and asked her to roll it down, but
appellant shook her head no. Appellant tried to talk to Tikal through the window,
but Tikal could not hear what she was saying and again asked appellant to roll the
window down. Appellant then hit the door unlock button three or four times,
locking and unlocking the door. Tikal explained that it appeared appellant was
attempting to roll down the window but could not locate the correct button. When
appellant hit the unlock button again, Tikal “went ahead and opened the door
because [appellant] was clearly having an issue.” When the door opened, Tikal
smelled alcohol. When Tikal began to converse with appellant, she noted
appellant could not explain her actions, became emotional, and had slurred speech.
Tikal stated that at that point, the focus of her investigation shifted to DWI.
Tikal explained that from hearing the dispatcher’s side of the conversation
with Bruton, she believed there to have been “some type of disturbance,” that
appellant “had already hit his vehicle once . . . and was continuing to follow him
around town.” Tikal additionally described her experience and training as a police
officer. She further stated that it is a violation of law to follow another vehicle
extremely closely, to hit someone’s vehicle, and to harass another person. At the
conclusion of the hearing, the trial court denied appellant’s motion to suppress. As
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Tikal testified that when it was determined Bruton was close to the police station, she
began walking toward the parking lot and the dispatcher gave her additional information over the
radio. This exchange was also recorded on the tape of the call.
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mentioned above, appellant then pleaded guilty, while preserving her right to
appeal the trial court’s ruling on the motion to suppress.
Governing Law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013). The trial court’s determinations of historical facts and mixed questions of
law and fact that rely on credibility are granted almost total deference when
supported by the record. Id. But when mixed questions of law and fact do not
depend on the evaluation of credibility and demeanor, we review the trial court’s
ruling de novo. Id. Whether the facts known to the officer at the time of the
detention amount to reasonable suspicion is a mixed question of fact and law that
is reviewed de novo on appeal. Id. When, as in this case, the trial judge does not
make formal findings of fact, we uphold the trial court’s ruling on any theory of
law applicable to the case and presume the court made implicit findings in support
of its ruling if those findings are supported by the record. State v. Ross, 32 S.W.3d
853, 855–56 (Tex. Crim. App. 2000).
Under the Fourth Amendment, a warrantless detention of a person that
amounts to less than a full custodial arrest must be justified by a reasonable
suspicion. Kerwick, 393 S.W.3d at 273.2 “[A] law enforcement officer’s
reasonable suspicion that a person may be involved in criminal activity permits the
officer to stop the person for a brief time and take additional steps to investigate
further.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004).
Reasonable suspicion to detain a person exists if an officer has specific, articulable
2
The State concedes for argument purposes that appellant was detained when Tikal
opened appellant’s vehicle door without her consent. For purposes of our analysis, we assume
without deciding that a detention occurred.
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facts that, combined with rational inferences from those facts, would lead him or
her to reasonably conclude that the person detained is, has been, or soon will be
engaged in criminal activity. Kerwick, 393 S.W.3d at 273. These facts must show
unusual activity, some evidence that connects the detainee to the unusual activity,
and some indication that the unusual activity is related to crime, but the likelihood
of criminal activity need not rise to the level required for probable cause to arrest.
Id. at 273-74. The test for reasonable suspicion is an objective one that focuses
solely on whether an objective basis exists for the detention and disregards the
officer’s subjective intent. Id. at 274. A reasonable-suspicion determination must
be based on the totality of the circumstances, and reasonable suspicion may exist
even if the circumstances presented are as consistent with innocent activity as with
criminal activity. Id.
Analysis
In her first three issues, appellant challenges the trial court’s determination
that her detention was supported by reasonable suspicion. More precisely,
appellant questions whether Tikal presented specific, articulable facts that,
combined with rational inferences from those facts, led her to reasonably conclude
that at the time of the detention, appellant was, had been, or would soon be
engaged in criminal activity. In support of her argument, appellant relies heavily
on the Court of Criminal Appeals opinion in Ford v. State, 158 S.W.3d 488 (Tex.
Crim. App. 2005).
In Ford, the detaining officer testified that he pulled the defendant over after
observing the defendant following another vehicle “too closely.” Id. at 491. The
officer explained that he believed the defendant had committed the traffic offense
of “[f]ollowing too close.” Id.; see also Tex. Transp. Code § 545.062(a)
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(prescribing safe following distances for vehicles).3 The officer did not provide
any specific information regarding conditions at the time of the stop beyond the
time of day and did not offer any details regarding how closely the defendant was
following the other vehicle. The trial court and the court of appeals held that the
officer’s testimony was sufficient to support a reasonable suspicion justifying an
investigative detention. Ford, 158 S.W.3d at 491-92. The court of appeals
specifically reasoned that the officer’s training and experience qualified him to
make a judgment regarding whether the defendant was violating the law by
following the other vehicle too closely given the conditions present on the
roadway. Id. The Court of Criminal Appeals reversed, however, holding that the
officer’s testimony was conclusory and failed to offer specific, articulable facts
that a court could use in assessing whether the officer’s opinion was objectively
reasonable. Id. at 493-94. The Court acknowledged that an officer’s training and
experience may factor into the analysis but stated that relying on those factors
without objective factual support was inappropriate. Id.
In the present case, Tikal’s statement that she observed appellant pull into
the parking lot “immediately after [Bruton] very close tailgating his vehicle” is
somewhat similar to the officer’s statement in Ford that the Court of Criminal
Appeals found conclusory. Tikal, like the officer in Ford, did not provide
information regarding speed, distance between the vehicles, or the conditions
present on the roadway. Her statement offered only slightly more detail in that she
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Section 545.062 provides as follows:
An operator shall, if following another vehicle, maintain an assured clear distance
between the two vehicles so that, considering the speed of the vehicles, traffic,
and the conditions of the highway, the operator can safely stop without colliding
with the preceding vehicle or veering into another vehicle, object, or person on or
near the highway.
Tex. Transp. Code § 545.062(a).
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stated appellant’s vehicle was “very close” to Bruton’s vehicle as they were pulling
into the parking lot. Cf. Stoker v. State, 170 S.W.3d 807, 813 (Tex. App.—Tyler
2005, no pet.) (distinguishing Ford and holding officer provided specific
articulable facts when officer testified that defendant was “traveling at a high rate
of speed” and was “right up on another car.”).
However, even if Tikal’s tailgating statement was insufficient under Ford,
there was considerably more information presented in this case to support
reasonable suspicion than was offered in Ford. When Tikal observed appellant
tailgating Bruton, she was aware that appellant had already hit Bruton’s vehicle
with her own and had been following him around town for some time. Tikal
testified that she heard the dispatcher’s side of the conversation with Bruton, so she
would have heard the dispatcher say “[s]he ran into you?” and (apparently to Tikal)
“[s]he bumped his vehicle. She was following him too close.” Moreover, the
dispatcher said that the woman driving the Lexus had been following Bruton
through town and was still following him.4
At the time of the alleged detention, Tikal therefore had information
indicating appellant had hit Bruton’s vehicle by following him too closely, a
4
The additional information Bruton supplied the dispatcher, as recorded on the tape of
his call, also supports the determination of reasonable suspicion in this case. The detaining
officer need not be personally aware of every fact that objectively supports a reasonable
suspicion to detain; instead, the cumulative information known to cooperating officers at the time
of the stop must be considered in determining whether reasonable suspicion exists.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police dispatcher is
generally regarded as a cooperating officer for purposes of this analysis. See id. Moreover,
information provided to police by a citizen-informant who identifies himself and may be held to
account for the accuracy and veracity of his report may be regarded as reliable. Id. at 914-15.
The only question in that scenario is whether the information provided by the citizen—viewed
through the prism of the detaining officer’s knowledge and experience—objectively supports a
reasonable suspicion to believe that criminal activity is afoot. Id. at 915. In the call, Bruton
provided additional details, including that appellant “ran into” him at an intersection, was driving
“right on [his] bumper,” and was following him around town.
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possible violation of Penal Code section 545.062(a).5 Moreover, from this
information as well as the fact that appellant continued to follow Bruton closely
around town—as reported by Bruton and observed by Tikal herself—Tikal had a
reasonable suspicion that appellant would eventually strike Bruton’s vehicle again.
Thus, Tikal was aware of specific, articulable facts that, combined with rational
inferences from those facts, led her to reasonably conclude that at the time of the
alleged detention, appellant was, had been, or soon would be engaged in criminal
activity. See Kerwick, 393 S.W.3d at 273. In other words, the facts demonstrated
a connection between appellant and unusual activity and some indication that the
unusual activity was related to crime. See id. The specific, articulable facts
presented therefore justified an investigative detention. Accordingly, we overrule
appellant’s first three issues.
In her fourth issue, appellant argues that Tikal lacked authority to detain her
for a traffic violation that Tikal neither witnessed nor had proof it occurred within
the jurisdictional limits of her police force, the Tomball Police Department. The
legal authority appellant cites in support of her contentions, however, paragraphs
(1) and (2) of Texas Code of Criminal Procedure article 14.3g, deal with when a
peace officer may arrest a suspect without a warrant outside the officer’s
jurisdiction. These provisions have no application to an officer’s investigative
detention of someone within the officer’s jurisdiction. Appellant cites no other
legal authority in support of her argument. Accordingly, we overrule appellant’s
5
Appellant offers scenarios under which colliding with the rear of another vehicle would
not necessarily be a violation, such as when the vehicle in front rolls backwards into the vehicle
behind and when a third vehicle forces two other vehicles to collide. These scenarios, however,
do not comport with the information relayed to Tikal or the dispatcher at the time of the alleged
detention. The information conveyed was that appellant was following Bruton’s vehicle so
closely that she hit his vehicle as they were coming to an intersection. Moreover, reasonable
suspicion may exist even under circumstances that are as consistent with innocent activity as
with criminal activity. See Kerwick, 393 S.W.3d at 274.
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fourth issue. See Tex. R. App. P. 38.1(i) (requiring that appellant’s brief contain
“clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record”).
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Jamison, Busby, and Brown.
Publish — TEX. R. APP. P. 47.2(b).
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