David Leroy Taflinger v. State ( 2013 )

Dissenting Opinion issued November 4, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00553-CR
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DAVID LEROY TAFLINGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 14
Harris County, Texas
Trial Court Case No. 1791890
DISSENTING OPINION
As there was no independent corroboration of the gas station cashier’s
unsubstantiated claim that Taflinger was “drunk” and the officer’s stop was based
upon an imagined traffic violation, I dissent.
Because the only question for our review is the application of the law to the
undisputed facts, this court’s review of the trial court’s conclusions of law is de
novo. Ford v State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
The majority seeks to re-cast this groundless stop by reference to cases
which are all critically distinguishable from the very simple and basic facts as they
have arrived in our Court:
1. A gas station cashier who Officer Troost knew because he frequented
the station, called Officer Troost’s cell phone and reported that
Taflinger had just left the store drunk, was driving off the station’s
premises in a red truck, and that Officer Troost should stop Taflinger
and arrest him.
2. Officer Troost saw the red truck turn out onto a public roadway across
two northbound lanes and turn left without signaling.
3. Under the mistaken belief that Taflinger had committed a traffic
violation by not signaling, Officer Troost stopped Taflinger and
subsequently arrested him for DWI.
Officer Troost observed no actual traffic violations; no weaving; no driving
exceptionally slow; nor incidents of other cars being nearly run off the road due to
Taflinger’s driving.
As in Ford, the record provides no facts that would allow a reviewing court
to determine whether the officer’s opinions were objectively reasonable. 158
S.W.3d at 493. The cashier merely proffered her opinion that Taflinger was
“drunk,” and that Officer Troost should stop Taflinger and arrest him. An opinion
with no articulated factual basis cannot provide the basis for an objectively
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reasonable suspicion sufficient to detain a driver. Id. (stating “articulable facts are
required to provide a basis for finding reasonable suspicion”).
The facts of this case are not the facts of State v. Stolte, 991 S.W.2d 336
(Tex. App.—Fort Worth 1999, no pet.) in which the caller, a former law
enforcement employee, described Stolte’s dangerous driving to the police
dispatcher in real time and in great detail (e.g., the number of times Stolte’s vehicle
weaved from its lane, the fact that Stolte almost ran another car off the road), thus
providing a factual basis for the subsequent stop, not a mere unsupported
conclusory statement. Id. at 340.
Nor do the facts here comport with Nacu v State, 373 S.W.3d 691 (Tex.
App.—San Antonio 2012, no pet.)—the case cited by the majority in which the
citizen who alerted the officer about an intoxicated driver was a restaurant manager
who had observed Nacu disturbing other customers, using profanity, throwing
napkins and sugar packets, and asking other customers to buy her alcohol after the
restaurant staff refused to serve her. Id. at 692–93. When Nacu left and attempted
to drive away, the manager ran outside with a cell phone in order record Nacu’s
license plate information and give it to police. Id. at 693. Seeing a police unit in
the adjacent lot, the manager reported Nacu to the officer, who immediately
thereafter personally witnessed Nacu drive in an unsafe manner between two poles
in her attempt to exit the restaurant’s lot. Id. No such erratic or unsafe driving was
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in play in the present case. Indeed, here, there is no “there” there—there is nothing
apart from an unsubstantiated conclusory accusation and a legally executed exit
and turn from a private driveway onto a public roadway.
The majority characterizes Taflinger’s non-signaled exit from the parking lot
as a “small additional measure of corroboration” of Taflinger’s intoxication. What
corroboration? Since Officer Troost’s testimony never noted anything except an
imagined traffic violation, we can assume that what the officer witnessed was
nothing more than a perfectly executed exit and turn onto a public roadway. How
does that in any way serve to corroborate anything?
The reasonableness of a given detention will turn on the totality of the
circumstances in that particular case. See Woods v. State, 956 S.W.2d 33, 38 (Tex.
Crim. App. 1997). The totality of the circumstances of this case is so lacking in a
basis for objectionably reasonable suspicion, it cannot stand.
The majority’s recurring recitation as to the credibility and weight to be
accorded citizens’ tips, while valid in a general sense, is nothing more than an
obfuscation (“look over there”), because Taflinger never contests the cashier’s
reliability or credibility. Rather, the actual issue here is the absence of articulable
facts that could serve as the basis for an objectionably reasonable suspicion.
When the cashier called Officer Troost’s cell phone, she alerted him that
Taflinger was “drunk” and leaving the premises driving a red truck. Officer
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Troost, who was on the gas station’s premises, spotted the red truck (the only truck
on the premises) pulling out from the station and turning onto a public roadway.
Officer Troost stopped Taflinger’s vehicle for failing to sign a turn that the law
imposes no duty to signal. Apart from having received a call advising him of the
cashier’s conclusion that Taflinger was “drunk,” and observing something the
officer incorrectly construed to be a law violation sufficient to stop the truck,
Officer Troost did not follow the truck to observe it for actual violations or other
“specific and articulable facts” from which he may have reasonably surmised that
Tafligner was “associated with a crime.”
Because neither Officer Troost nor the cashier articulated a factual basis
which would allow a reviewing court to determine whether Officer Troost had an
objectively reasonable suspicion sufficient to detain Taflinger, I would reverse.
See Ford, 158 S.W.3d at 493–94 (holding trial court erred in denying defendant’s
motion to suppress due to lack of articulable facts providing basis for finding
reasonable suspicion).
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp and Huddle.
Justice Sharp, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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