Charles Jerome McClenty v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00184-CR
CHARLES JEROME MCCLENTY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1312934
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MEMORANDUM OPINION1
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I. INTRODUCTION
After the trial court denied Appellant Charles Jerome McClenty’s motion to
suppress, he pleaded guilty to driving while intoxicated. In one issue, McClenty
argues that the trial court abused its discretion by denying his suppression
1
See Tex. R. App. P. 47.4.
motion because the arresting officer allegedly lacked reasonable suspicion to
stop him. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mark Allen, the general manager of a bar, called 911 because a verbal
altercation between McClenty and others at the bar “was about to turn violent.”
Allen described McClenty as the most irate person involved. Officer Matthew
Visser responded to the call. From the dispatch, he understood that six or more
persons were “possibly getting ready to fight or fight in the parking lot.” Officer
Visser knew Allen from Allen’s prior calls involving intoxicated persons.
When Officer Visser arrived at the bar about two or three minutes after the
call, he saw Allen standing outside pointing at a car that was leaving; Allen was
pointing at McClenty’s car, and he loudly told Officer Visser, “[T]hat guy right
there. . . . [T]hat vehicle that’s leaving right there.” Officer Visser followed
McClenty and stopped him by activating his lights and siren.
Officer Visser testified that he stopped McClenty to investigate whether a
breach of the peace or an assault had taken place. When Officer Visser began
talking with McClenty, he smelled a strong odor of alcoholic beverage and
observed that McClenty’s eyes were bloodshot and watery and that he was
speaking “kind of thick-tongued.” Officer Visser arrested McClenty for driving
while intoxicated, and McClenty moved to suppress the evidence of his
intoxication, arguing that Officer Visser lacked reasonable suspicion to stop his
car.
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III. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When, as here, there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court’s ruling if the evidence, viewed in
the light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v.
State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial
court’s legal ruling de novo unless the implied fact findings supported by the
record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808,
819 (Tex. Crim. App. 2006).
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IV. REASONABLE SUSPICION FOR AN INVESTIGATIVE STOP
A. The Law on Reasonable Suspicion
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined with
rational inferences from those facts, would lead him to reasonably conclude that
a particular person is, has been, or soon will be engaged in criminal activity.
Ford, 158 S.W.3d at 492.
B. Application of the Law to the Facts
Officer Visser had specific, articulable facts that provided reasonable
suspicion to believe McClenty had violated the law. Specifically, Officer Visser
could have reasonably suspected that McClenty had assaulted someone2 or had
2
A person commits an assault by intentionally, knowingly, or recklessly
causing bodily injury to another or by intentionally or knowingly threatening
another with imminent bodily injury. See Tex. Penal Code Ann. § 22.01 (West
Supp. 2014).
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committed disorderly conduct.3 Officer Visser received information that a fight
was imminent, and there was a lapse of two to three minutes between his receipt
of this information and his arrival at the bar. Upon arriving, Allen, whom Officer
Visser knew from previous encounters, identified McClenty as a culprit. Because
McClenty was leaving, Officer Visser faced the decision of letting him go while he
stayed to clarify with Allen what had occurred or of stopping McClenty to
investigate his involvement in the anticipated fight. As the court of criminal
appeals observed, “The Fourth Amendment does not require an officer ‘to simply
shrug his shoulders and allow . . . a criminal to escape. On the contrary, Terry
recognizes that it may be the essence of good police work to adopt an
intermediate response.’” State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App.
2013) (quoting Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923
(1972)).
The facts of this case are similar to those in Kerwick. In Kerwick, an officer
was dispatched to a bar in response to a reported fight. Id. at 272. On arriving,
3
Officer Visser did not mention disorderly conduct (although he might have
meant it when he said “breach of the peace” because breach of the peace is not
a codified offense but is mentioned in the disorderly-conduct statute), but our
determination of whether he had reasonable suspicion looks to whether any
objective basis for the stop existed. See Ford, 158 S.W.3d at 492. A person
commits disorderly conduct by intentionally or knowingly using abusive, indecent,
profane, or vulgar language in a public place that tends to incite an immediate
breach of the peace; abusing or threatening a person in a public place in an
obviously offensive manner; making unreasonable noise in a public place; or
fighting with another in a public place. See Tex. Penal Code Ann. § 42.01(a)(1),
(4)–(6) (West Supp. 2014).
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an “unidentified person,” the owner of a damaged vehicle, pointed to Kerwick’s
car and said “[T]here they are right there. There they are, there they are.” Id.
The officer, responding to the unidentified person’s complaint, approached
Kerwick’s car on foot, but the car began to move, and the officer ordered
Kerwick, who was the driver, to stop. Id. When the officer talked to Kerwick, the
officer smelled a strong odor of alcohol and observed that Kerwick had bloodshot
and watery eyes. Id. The officer arrested Kerwick for driving while intoxicated,
and Kerwick moved to suppress the evidence of intoxication on the grounds that
the officer lacked reasonable suspicion to stop her. Id. at 271. The court of
criminal appeals disagreed with Kerwick, holding that
[i]n light of the damaged vehicle and the presence of several people
outside of the bar after a report of several people fighting, and the
clear identification of Kerwick’s vehicle, the statement [by the
unidentified person] provided a rational basis for [the Officer] to infer
that the person whose vehicle was damaged was a potential crime
victim and was identifying the person or persons responsible for the
damage.
Id. at 276.
Like the officer in Kerwick, Officer Visser was dispatched to quell a
disturbance at a bar, and upon arriving at the bar, someone directed him to follow
a person seemingly responsible for the disturbance. The facts of this case are
stronger than those in Kerwick, however, because Officer Visser knew the
person directing him; in Kerwick, the officer followed the directive of an
“unidentified person.” See id. at 272. Here, Officer Visser knew Allen, had
worked with him in the past relating to disruptive bar patrons, received the 911
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call from Allen,4 and recognized Allen when he arrived. In other words, “The
informant was known to him personally and had provided him with information in
the past. This is a stronger case than obtains in the case of an anonymous
telephone tip.” Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923
(1972); see Derichsweiler, 348 S.W.3d at 914 (emphasizing the higher reliability
of known citizen-informants).
Because the totality of the circumstances provided specific, articulable
facts that, when combined with rational inferences from those facts, lead Officer
Visser to reasonably conclude McClenty had engaged in criminal activity, we
hold that the trial court did not abuse its discretion by denying his motion to
suppress. See Ford, 158 S.W.3d at 492; see also Kerwick, 393 S.W.3d at 276
(holding in similar but weaker circumstances that reasonable suspicion of
criminal activity existed). We overrule McClenty’s sole issue on appeal.
V. CONCLUSION
Having overruled McClenty’s sole issue, we affirm the trial court’s order
denying his motion to suppress and the court’s subsequent judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
4
Reasonable suspicion is premised on the “cumulative information known
to the cooperating officers,” which includes a 911 police dispatcher.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2015
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