Zachary Ellis Armstrong v. State ( 2015 )


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  •                               NUMBER 13-14-00181-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    ZACHARY ELLIS ARMSTRONG,                                                              Appellant,
    v.
    THE STATE OF TEXAS,                                                                    Appellee.
    On appeal from the County Court at Law No. 4
    of Montgomery County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Longoria
    Memorandum Opinion by Justice Rodriguez
    Appellant Zachary Ellis Armstrong perfected an appeal from a judgment entered
    by County Court at Law No. 4 in Montgomery County, Texas.1 A jury found Armstrong
    1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
    to a docket equalization order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001
    (West, Westlaw through 2013 3d C.S.).
    guilty of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw
    through 2013 3d C.S.). This appeal arises from the denial of Armstrong’s motion to
    suppress evidence. By one issue, Armstrong complains that the detention and
    subsequent arrest were unconstitutional; therefore rendering the evidence introduced
    against him unconstitutional. We affirm.
    I.    BACKGROUND
    At the hearing on Armstrong’s motion to suppress, James Dean, a local wrecker
    truck driver, testified that he flagged down Officer Billy McPike of the Conroe Police
    Department shortly after midnight on April 21, 2012. Dean testified that he informed
    Officer McPike about an incident that had just occurred involving Dean and Armstrong.
    Dean told Officer McPike that Armstrong was stopped behind him at a red light. When
    the light turned green, Armstrong repeatedly honked his horn, revved the engine of his
    vehicle, and then passed Dean at a high rate of speed while making aggressive arm
    gestures out of the window of his vehicle. According to Dean, while Armstrong was
    traveling at excessive rates of speed, he cut across four lanes of traffic.2 Dean said that
    Armstrong was acting “as if he was trying to get him into some type of confrontation, as if
    he wanted to start a fight or something.” Additionally, Dean stated he thought that
    Armstrong might be “drunk” based on his encounter with him. Dean was able to direct
    Officer McPike to Armstrong’s location.3
    2 Dean initially told Officer McPike that Armstrong was “flying.” Dean later clarified his testimony
    to confirm that he believed Armstrong was travelling at excessive rates of speed.
    3   Officer McPike observed Armstrong parking his vehicle in a public hotel parking lot.
    2
    Officer McPike testified that he interpreted Dean’s description of the events as a
    possible road rage incident, believed that Armstrong had driven too fast, and believed
    that Armstrong had made unsafe lane changes. From experience, Officer McPike stated
    that road rage incidents can lead to collisions and assaults and that they frequently involve
    individuals who have had their judgment impaired by alcohol. Based on the information
    provided by Dean and his own prior experiences, Officer McPike turned on his overhead
    lights, pulled into the parking lot, and asked Armstrong to “come here” in a commanding
    voice. When Officer McPike asked Armstrong about the incident, Armstrong denied that
    anything had occurred. At that time, Officer McPike returned to his patrol vehicle to run
    a warrant search on Armstrong.
    Conroe Police Officer Brett Irvine testified that he heard Officer McPike call in the
    incident and he arrived to assist within four minutes of Officer McPike’s initial contact with
    Armstrong. Officer Irving testified that Officer McPike relayed Dean’s statements and
    told Officer Irving that he believed Armstrong was possibly intoxicated. Officer Irving
    then took over the investigation.
    Officer Irving testified that upon arriving at the scene he smelled an odor of alcohol
    on Armstrong’s breath, observed that Armstrong’s eyes were red, and noted that
    Armstrong had trouble maintaining his balance while walking. Officer Irving administered
    the standardized field sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the
    walk-and-turn test, and the one-leg-stand test. Officer Irving testified that Armstrong
    exhibited six clues on the HGN test, five clues on the walk-and-turn test, and four clues
    on the one-leg-stand test.      Armstrong was arrested for suspicion of driving while
    3
    intoxicated, and Officer Irving obtained a search warrant for a sample of Armstrong’s
    blood. The blood test showed that Armstrong’s blood alcohol was 0.181, over twice the
    legal limit.
    Armstrong was charged, by information, with the misdemeanor offense of driving
    while intoxicated. Before trial, Armstrong filed a motion to suppress evidence based on
    his contention that Officer McPike lacked a reasonable suspicion for the initial stop. After
    an evidentiary hearing on the motion, the trial court denied Armstrong’s motion to
    suppress. A jury found Armstrong guilty of driving while intoxicated, sentenced him to
    three days in jail, and assessed a $2,000.00 fine. On appeal, Armstrong brings one
    issue, complaining of the trial court’s denial of his motion to suppress.
    II.    STANDARD OF REVIEW
    In conducting a review on the propriety of a trial court's ruling on a motion to
    suppress, we first determine the applicable standard of review. See Guzman v. State,
    
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997). Appellate courts should show almost total
    deference to the trial court’s findings of fact or applications of the law of search and
    seizure to the facts when they are based on an evaluation of credibility and demeanor.
    See 
    id. In showing
    such deference, we view the evidence in the light most favorable to
    the trial court's ruling, and only conduct a de novo review of determinations of reasonable
    suspicion and probable cause. See 
    id. at 89.
    We review de novo rulings based on mixed questions of law and fact that are not
    based in credibility, as well as the application of the law to uncontested facts. See
    Maestas v. State, 
    987 S.W.2d 59
    , 62 n.8 (Tex. Crim. App. 1999); Guzman, 
    955 S.W.2d 4
    at 89. We review the record anew, and if the facts and circumstances known to the
    officers objectively constituted a lawful basis for a detention, we will validate that detention
    on appeal regardless of the officers' subjective reasoning for the detention. See Garcia
    v. State, 
    827 S.W.2d 937
    , 944 (Tex. Crim. App.1992) (en banc).
    III.   APPLICABLE LAW
    A police officer may lawfully stop a motorist who commits a traffic violation. See
    
    Powell, 5 S.W.3d at 376
    .       Such an event is a routine investigative detention.         See
    Berkemer v. McCarty, 
    468 U.S. 420
    , 439 (1984); see also Fowlkes v. State, No. 05-00-
    01358-CR, 
    2001 WL 881706
    , at *3 (Tex. App.—Dallas Aug. 7, 2001, pet. denied) (mem.
    op.) (not designated for publication).      Additionally, an officer may justifiably stop a
    motorist if the officer has a reasonable suspicion that some activity related to the
    commission of a crime is occurring or has occurred and that the motorist is connected
    with the activity. See Terry v. Ohio, 
    392 U.S. 1
    , 21–22 (1968); Crain v. State, 
    315 S.W.3d 43
    , 52 (Tex. Crim. App. 2010); Hoag v. State, 
    728 S.W.2d 375
    , 380 (Tex. Crim. App.
    1987).     “A brief stop of a suspicious individual, in order to determine his identity or to
    maintain the status quo momentarily while obtaining more information, may be most
    reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 
    407 U.S. 143
    , 146 (1972)
    Officers may rely on information provided to police from citizen-informants who
    identify themselves and can be held to account for the accuracy and veracity of their
    report. 
    Id. at 147.
    In such a scenario, the only question is whether the information that
    the identified citizen provides, viewed through the prism of the detaining officer's particular
    5
    level of knowledge and experience, objectively supports a reasonable suspicion to believe
    that criminal activity is afoot. Derichsweiler v. State, 
    348 S.W.3d 906
    915–16 (Tex. Crim.
    App. 2011).
    Whether the officer's suspicion is reasonable or not must be examined in terms of
    the totality of the circumstances. See Woods v. State, 
    956 S.W.2d 33
    , 37 (Tex. Crim.
    App.1997) (citing United States v. Cortez, 
    449 U.S. 411
    , 418 (1989)).         Reasonable
    suspicion requires an officer to possess specific articulable facts which, in light of his
    experience and personal knowledge, and taken together with rational inferences from
    those facts, lead him to conclude that the person detained is, has been, or soon will be,
    engaged in criminal activity. See 
    id. at 38;
    Gurrola v. State, 
    877 S.W.2d 300
    , 302 (Tex.
    Crim. App. 1994).
    Facts relied upon to give rise to reasonable suspicion need not show that the
    detainee has committed, is committing, or is about to commit, a particular and
    distinctively-identifiable penal offense. See 
    Derichsweiler, 348 S.W.3d at 916
    . “[T]he
    relevant inquiry is not whether particular conduct is innocent or criminal, but the degree
    of suspicion that attaches to particular non-criminal acts.” Woods v. State, 
    956 S.W.2d 33
    , 38 (Tex. Crim. App. 1997). To support a reasonable suspicion, the articulable facts
    must show that some activity out of the ordinary has occurred, some suggestion to
    connect the detainee to the unusual activity, and some indication that the unusual activity
    is related to a crime. 
    Derichsweiler, 348 S.W.3d at 916
    (finding that the defendant’s
    conduct of pulling up and staring at an identified citizen for two separate thirty second
    intervals and his actions doing the same to other parked vehicles, while not overtly
    6
    criminal in any way, was bizarre enough to support a suspicion that he was attempting to
    criminally exploit vulnerabilities).
    The higher standard attributable to a finding of probable cause is unnecessary
    because a brief investigative detention constitutes a significantly lesser intrusion upon the
    privacy and integrity of the person than a custodial arrest.4 
    Id. “So long
    as the intrusion
    does not exceed the legitimate scope of such a detention and evolve into the greater
    intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will
    tolerate a certain degree of police proaction.”5 
    Id. at 916–17.
    IV.     ANALYSIS
    Armstrong’s main contention is that his initial detention by Officer McPike was in
    error, thereby tainting all subsequent evidence obtained and used at the time of trial.
    Officer McPike testified that Dean flagged him down and informed him that he had just
    been involved in an incident in which Armstrong was driving erratically and aggressively.
    Officer McPike understood that Armstrong honked his horn, revved his engine, and cut in
    front of Dean while travelling at an inappropriate rate of speed and making aggressive
    arm gestures. See 
    Adams, 407 U.S. at 146
    –74; 
    Derichsweiler, 348 S.W.3d at 915
    –16;
    
    Woods, 956 S.W.2d at 37
    . He testified that such driving is often indicative of road rage
    4 Because a detention is less intrusive than an arrest, the specificity with which the articulable
    information known to the police must demonstrate that a particular penal offense has occurred, is occurring,
    or soon will occur, is concomitantly less. Derichsweiler v. State, 
    348 S.W.3d 906
    , 916 (Tex. Crim. App.
    2011).
    5 The record has established that an hour and thirteen minutes passed from the time that Officer
    McPike first contacted Anderson until the time that Anderson was arrested and a warrant was issued for a
    blood draw. Officer Irving initiated his DWI investigation within four minutes of Anderson’s detention.
    Anderson did not make any argument regarding the scope of his detention, other than to claim that it was
    wholly improper and not based on a reasonable suspicion.
    7
    and that he had experience in which similar incidents turned into assaults or traffic
    accidents.    See 
    Woods, 956 S.W.2d at 37
    ; 
    Gurrola, 877 S.W.2d at 302
    .             As such,
    recognizing a situation where he testified that alcohol was often a factor, he detained
    Armstrong to investigate possible criminal activity.     See 
    Woods, 956 S.W.2d at 37
    ;
    
    Gurrola, 877 S.W.2d at 302
    . He determined, pursuant to the incident Dean recounted
    and his own contact with Armstrong, that there was also a possible alcohol-related
    violation.   See 
    Adams, 407 U.S. at 146
    –47; 
    Derichsweiler, 348 S.W.3d at 915
    –16.
    Officer McPike made his determination to stop Armstrong on the basis of specific facts
    that allowed him to objectively conclude that Armstrong was, or had been, engaged in
    criminal activity.
    Officer McPike was justified in relying on the facts presented by Dean in articulating
    his reasonable suspicion: Officer McPike had been made aware that Anderson engaged
    in activity that was out of the ordinary, Dean specifically identified Anderson as the
    perpetrator of the unusual activity, and Officer McPike relied on his experience as an
    officer of the law to determine that Anderson’s aggressive driving patterns and behaviors
    provided some indication that Anderson’s actions were related to a crime.               See
    
    Derichsweiler, 348 S.W.3d at 916
    ; 
    Meeks, 653 S.W.2d at 12
    . Dean did more than merely
    identify himself to the officers: he personally directed Officer McPike to Anderson’s
    vehicle; he spoke with Officer McPike and Officer Irving about the road rage incident; and
    he remained on the scene throughout the detention that lead to Anderson’s arrest.
    Under our de novo review, we conclude that Officer McPike had reasonable
    8
    suspicion to stop Anderson.6 See 
    Guzman, 955 S.W.2d at 89
    . The trial court did not
    abuse its discretion in denying Anderson’s motion to suppress. See 
    Powell, 5 S.W.3d at 375
    . We overrule Anderson’s sole issue on appeal.
    V.      CONCLUSION
    We affirm the judgment of the trial court.
    NELDA V. RODRIGUEZ
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    21st day of May, 2015.
    6 The time the event occurred, the facts recounted by Dean about Armstrong’s aggressive driving,
    and Officer McPike’s personal knowledge and experience on the police force in which he had dealt with
    similar circumstances where similar road rage incidents either lead to accidents or were indicative of alcohol
    involvement, provided a reasonable basis for suspicion.
    9