Brian Keith Houston v. State ( 2020 )

Opinion issued February 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00925-CR
———————————
BRIAN KEITH HOUSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Guadalupe County, Texas1
Trial Court Case No. CCL-17-0130
MEMORANDUM OPINION
1
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See Misc. Docket No. 18–9130 (Tex. Sept. 26,
2018); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases).
We are unaware of any conflict between the precedent of the Court of Appeals for
the Third District and that of this Court on any relevant issue. See TEX. R. APP. P.
41.3.
After the trial court denied his motion to suppress evidence, appellant, Brian
Keith Houston, with an agreed punishment recommendation from the State, pleaded
guilty to the misdemeanor offense of driving while intoxicated (“DWI”).2 In
accordance with the plea agreement, the trial court assessed his punishment at
confinement for 365 days and a fine of $1,000. The trial court then suspended
appellant’s sentence, probated his fine, and placed him on community supervision
for a period of twenty-four months, with the conditions of three days’ confinement
and the completion of a Veteran’s Court treatment program. In two issues, appellant
contends that the trial court erred in denying his motion to suppress evidence.
We affirm.
Background
At a hearing on appellant’s motion to suppress, Seguin Police Department
Officer T. Brown testified that around 7:00 p.m. on December 12, 2016, she was
alerted by dispatch about a tip from a call for emergency assistance. The caller
identified appellant by name and reported that appellant was driving recklessly in an
older Buick car with license plate number DMS 5258. The caller informed the
emergency-assistance operator that before driving away, the caller saw appellant
urinating next to appellant’s car in the driveway of appellant’s home and falling as
2
See TEX. PENAL CODE ANN. § 49.04(a), (c), (d).
2
he tried to enter the car. The caller further stated that appellant had driven to a nearby
convenience store where he parked his car.
Officer Brown drove by the convenience store but did not see a car matching
the caller’s description. A short time later, at 7:16 p.m., dispatch relayed information
from a second emergency-assistance call to Brown. That caller described a four-
door gray car with a license plate of BMF 5258 that had pulled into the parking lot
across the street from the Koehler Company, a business near the intersection of
North Camp Street and New Braunfels Street. The caller further stated that the driver
had “almost hit a trash can and that he appeared to be driving in oncoming traffic.”
Officer Brown went to the location, where she found a tan car with plate
number DMS 5258, parked diagonally in the empty lot, with its motor running. As
Brown approached the car, she noticed that appellant, who was sitting in the driver’s
seat, had his eyes open but his head was slumped over as if he was sleeping or had
“passed out.” He appeared disoriented and moved slowly but cooperated with
Brown’s request that he step out of the car. The smell of alcoholic beverage
emanated from the car when appellant opened the door and when he began to stand,
he nearly fell on Brown and another assisting law enforcement officer. Brown and
the other officer helped steady appellant, but he could not balance himself upright
without leaning on the car.
3
Appellant told Brown that he had argued with his wife while she was getting
ready to leave for her dance class and he left his house when he began to experience
a “PTSD meltdown.” Appellant admitted to drinking half of a bottle of vodka before
getting in his car, an older Buick, and leaving his residence. Brown noticed more
than five empty vodka bottles scattered in the car and another vodka bottle missing
about one-quarter of its contents tucked in between the driver’s seat and the center
console. She administered field sobriety testing.
Standard of Review
We apply a bifurcated standard to review a trial court’s denial of a motion to
suppress evidence. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for an abuse of discretion, but
reviews the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole trier of fact and judge of a witness’s
credibility, and it may choose to believe or disbelieve all or any part of the witness’s
testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, a trial court does
not make explicit findings of fact, we review the evidence in a light most favorable
to the trial court’s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App.
2000). We give almost total deference to a trial court’s implied findings, especially
those based on an evaluation of witness credibility or demeanor. Valtierra v. State,
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310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court’s ruling
if it is reasonably supported by the record and is correct on any theory of law
applicable to the case. Id. at 447–48 & n.19.
Motion to Suppress
In his first issue, appellant argues that the trial court erred in denying his
motion to suppress because Officer Brown lacked reasonable suspicion of criminal
activity sufficient to justify his detention.
A law enforcement officer may temporarily detain a person for investigative
purposes if the officer reasonably suspects that the detained person is, has been, or
soon will be engaged in criminal activity. Wade v. State, 422 S.W.3d 661, 668 (Tex.
Crim. App. 2013) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 881–82
(1975)); Pate v. State, 518 S.W.3d 911, 914 (Tex. App.—Houston [1st Dist.] 2017,
pet. ref’d). Whether reasonable suspicion exists depends on “both the content of
information possessed by [a law enforcement officer] and its degree of reliability.”
Alabama v. White, 496 U.S. 325, 330 (1990), quoted in Navarette v. California, 572
U.S. 393, 397 (2014). Reasonable suspicion exists when a law enforcement officer
has a particularized and objective basis for suspecting the particular person stopped
of criminal activity. Navarette, 572 U.S. at 397.
Courts determine whether reasonable suspicion exists by objectively viewing
the totality of the circumstances. Id. The detaining law enforcement officer need
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not personally be aware of every fact that supports a reasonable suspicion to detain
because the content of the information possessed by law enforcement officers
includes the totality of the information known collectively to the cooperating
officers, including emergency dispatchers. See Derichsweiler v. State, 348 S.W.3d
906, 915 (Tex. Crim. App. 2011).
A traffic stop may be justified if the facts underlying the stop are observed by
a civilian informant. Pate, 518 S.W.3d at 914; see also Navarette, 572 U.S. at 397.
Courts have identified several indicia of reliability about tips from a citizen
informant. For example, an informant may be treated as more reliable if he provides
a firsthand account and a detailed description of wrongdoing. Hawes v. State, 125
S.W.3d 535, 539 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Navarette,
572 U.S. at 399–400 (observing contemporaneous eyewitness reports of suspected
criminal activity have “long been treated as especially reliable”). Courts also
consider an informant who is not connected with law enforcement officers to be
inherently trustworthy when advising officers of suspected criminal activity.
Taflinger v. State, 414 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2013, no
pet.).
Even an anonymous tip, if supported by other “sufficient indicia of
reliability,” may be enough to justify a stop. See Navarette, 572 U.S. at 397. Texas
courts have consistently concluded that a detailed, contemporaneous, first-person
6
report by an emergency-assistance caller coupled with a law enforcement officer’s
own observations corroborating the reliability of the concerned citizen’s tip is
enough to justify reasonable suspicion to stop and investigate a driver for a suspected
DWI offense. See Leming v. State, 493 S.W.3d 552, 565 (Tex. Crim. App. 2016);
Pate, 518 S.W.3d at 915–916; Oringderff v. State, 528 S.W.3d 582, 588–589 (Tex.
App.—Texarkana 2017, no pet.); LeCourias v. State, 341 S.W.3d 483, 486, 488
(Tex. App.—Houston [14th Dist.] 2011, no pet.).
Appellant argues that the trial court erred in denying his motion to suppress
because the emergency-assistance calls failed to convey and corroborate sufficient
particularized information to support a reasonable suspicion of criminal behavior.
In Navarette, the Supreme Court analyzed whether information provided by a
single anonymous caller contained enough indicia of reliability to justify an
investigative stop. In that case, highway patrolmen received a report from an
anonymous emergency-assistance caller that a silver Ford F–150 pickup truck
traveling southbound on the highway had run the caller off the road. 572 U.S. at
395. A few minutes later, a highway patrolman encountered a truck matching the
one described by the caller traveling in the direction the caller had reported. Id.
Although the highway patrolman did not personally observe the truck driving
erratically, the Court held that the caller’s tip contained adequate indicia of reliability
to support a reasonable suspicion for a stop, given that it was based on eyewitness
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knowledge, contemporaneous, and reported to the “911 emergency system.” Id. at
398–99, 400.
Appellant acknowledges that the record refers to the emergency-assistance
callers here as “identified,” but asserts that our analysis should treat them like the
anonymous Navarette caller because the record does not specifically identify them.
When informants identify themselves, they make themselves potentially accountable
for the intervention, and the degree of reliability and weight given to the information
provided significantly increases. Martinez v. State, 348 S.W.3d 919, 923 (Tex.
Crim. App. 2011).
The circumstances that led to treating the emergency-assistance caller in
Navarette as anonymous are distinguishable from those here. In Navarette,
evidentiary issues unique to California state law prevented the state from proving up
the caller’s identity, so it effectively conceded that the caller was anonymous. See
572 U.S. at 396 n.1; People v. Navarette, No. A132353, 2012 WL 4842651, at *4–
5 (Cal. App. Oct. 12, 2012). Here, the unequivocal evidence describes the
emergency-assistance callers as identified, and appellant, in the trial court, raised no
evidentiary objection to Officer Brown’s testimony on that matter. Compare
Martinez, 348 S.W.3d at 924–25 (emergency-assistance caller described as
anonymous and stating caller’s identifying information was not revealed before stop)
with Derichsweiler, 248 S.W.3d at 915 (emergency-assistance callers identified
8
themselves to emergency dispatcher and thus constituted known sources for
information provided).
Navarette is also distinguishable from this case because it involved a single
caller. See 572 U.S. at 395–96. Here, two individuals called for emergency
assistance within about fifteen minutes of each other, and the second caller
corroborated much of the information provided by the first caller, as shown below:
Caller #1 (near 7:00 P.M.) Caller #2 (near 7:15 P.M.)
Appellant (identified by name) urinated
by his car in the driveway at his home
address; appellant fell in the driveway
while getting into his car.
Appellant was driving an older Buick Person was driving a four-door gray car,
car, license plate DMS 5258. license plate BMF 5258.
Appellant drove recklessly. Person almost hit trash cans with car and
appeared to drive into oncoming traffic.
Appellant parked his car at “Quickie Person parked car in the lot across the
Bee’s” convenience store. street from The Koehler Company
(located less than one mile away from
appellant’s home address and less than
one mile away from “Quickie Bee’s”
convenience store).3
3
Although the parties did not present evidence of the distance between these
locations, we may take judicial notice of these geographical facts as they are not
subject to dispute. See TEX. R. EVID. 201(b); In re Marriage of Christensen, 570
S.W.3d 933, 936 n.3 (Tex. App.—Texarkana 2019, no pet.); Lopez v. State, No.
08-15-00008-CR, 2018 WL 2173933, at *7 (Tex. App—El Paso May 11, 2019, no
pet.) (mem. op., not designated for publication) (citing Harper v. Killon, 348 S.W.2d
521, 523 (Tex. 1961)).
9
Appellant observes that Caller #1’s description that appellant was “driving
recklessly,” standing alone, lacked the detail that would make it independently
reliable. But the initial report also conveyed specific information about appellant
falling as he tried to enter his car, and Caller #2, reporting that a gray, four-door car
almost hit a trash can and appeared to drive into oncoming traffic—contained
particularized information that corroborated the initial report. Taken together, these
first-hand reports convey information that the driver of the car—appellant—had
impaired balance and driving skills, indicia that are often associated with drunk
driving. See Navarette, 572 U.S. at 402.
Appellant also asserts that inconsistencies in the reports make them less
reliable, including the differences between (1) the license plate reported by Caller
#1 and that reported by Caller #2, and (2) Caller #2’s identification of the car’s color
as gray and Officer Brown’s description of the car’s color as tan. Brown’s
testimony, however, reconciles these perceived differences. Based on her nearly
twenty years of experience as a law enforcement officer, Brown testified that small
differences between the license plate characters and color descriptions of the car did
not detract from the overall reliability of the information provided by the
emergency-assistance callers. As for the discrepancy in the reported license plate
characters, she observed that citizen informants often make similar errors when they
try to memorize the characters to report them. Brown opined that it was more
10
significant that Caller #2 reported the same four digits for the license plate that Caller
#1 had and that Caller #2’s physical description of the car fit with that provided by
Caller #1. After finding the car parked in the location reported by Caller #2, Brown
confirmed that it had the same license plate reported by Caller #1.
In discounting the varied descriptions of the car’s color, Officer Brown noted
that it was already dark outside on that winter evening, which would obscure color,
and that various words could describe the car’s color. Appellant, himself,
acknowledged at the motion to suppress hearing that the color of his car could be
described in various ways, such as bronze, brown, gold, or tan, and conceded that it
would be harder to identify its color at night.
Finally, appellant asserts that the callers’ reports to the emergency-assistance
operators lack sufficient detail about the direction that the car had come from or
when the caller had last seen the car. Those details were significant in Navarette,
where the highway patrolman could confirm the location of the southbound truck
based on the highway mile marker identified by the emergency-assistance caller and
the roughly eighteen minutes that had elapsed between the call and the truck’s
sighting. See 572 U.S. at 399. But here, the direction appellant was driving has
minimal significance because of the three reported locations’ close proximity to each
other.
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Appellant also asserts that no evidence shows that the emergency-assistance
calls were contemporaneous. The record does not support this assertion. Appellant
testified that he left the house over an argument with his wife, who was getting ready
to leave for her dance class. He told the trial court that she usually left for her dance
class at around 7:15 p.m. The emergency-assistance calls came in at around
7:00 p.m. and 7:15 p.m., and Officer Brown encountered appellant in the parking lot
identified by Caller #2 by 7:16 p.m. The record supports the trial court’s implicit
finding that the emergency-assistance calls were made at or near the times of the
callers’ observations.
Based on the totality of the circumstances, we conclude that the evidence from
the suppression hearing contains sufficient, articulable facts from which the trial
court could have determined that Officer Brown had reasonable suspicion of
criminal activity to detain appellant. For these reasons, we hold that the trial court
did not err in denying appellant’s motion to suppress.
We overrule appellant’s first issue. Because of our disposition of appellant’s
first issue, we need not address his second issue. See TEX. R. APP. P. 47.1.
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Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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