Andre Small v. the State of Texas ( 2023 )

Opinion issued June 29, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00425-CR
———————————
ANDRE SMALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1575633
MEMORANDUM OPINION
Appellant Andre Small was charged with Felon in Possession of a Firearm.
The charged offense was enhanced by allegations that Appellant previously had
been convicted of the felony offense of possession of a controlled substance and
the felony offense of theft. Prior to trial, the trial court heard and denied
Appellant’s motion to suppress evidence seized from his car at the time of his
arrest. A jury convicted Appellant of the unlawful possession charge, and he
pleaded “true” to the enhancement allegations.1 The jury assessed Appellant’s
punishment at twenty-five years’ confinement in the Correctional Institutions
Division of the Texas Department of Criminal Justice. Appellant filed a timely
notice of appeal.
In his first issue, Appellant argues the trial court erred in admitting the
recording of a 911 call over his Confrontation Clause and hearsay objections. In
his second issue, Appellant argues the trial court erred in denying his motion to
suppress evidence recovered during the search of his car because the officers
lacked reasonable suspicion to justify his detention and arrest.
We affirm.
Background
On December 31, 2017, the Houston Police Department (“HPD”) dispatch
received a 911 call from a woman who believed she was witnessing a kidnapping.
During the call, the woman, who identified herself as “Creshell,” told the
dispatcher she saw a man who appeared to be stuffing someone into his car’s trunk
and that she saw “legs kicking.” After she was transferred to a police sergeant,
Creshell told him it “look[ed] like someone just put somebody in the trunk of their
1
Small previously was convicted of the felony offenses of arson, possession of a
controlled substance, and theft.
2
car . . . . Their legs were kicking.” She told him the car was white and similar to an
old-style police car with paper tags. She stated that because of a left rear flat tire,
the man was driving on its rim. Creshell followed the man, who was driving
erratically. Once the car stopped, Creshell told the sergeant where to find the car.
She remained at the scene until law enforcement arrived. The suspect, later
identified as Appellant Andre Small (“Small”), was detained and ultimately
arrested by police at the scene. The police found a large opaque bag in the trunk of
the car, but no human body. Officers recovered a loaded .9mm handgun in plain
view on the front passenger seat of the car. After taking Small into custody, the
police ran a background check on him and learned he was a convicted felon.
Small was charged with felon in possession of a firearm.2 He pleaded not
guilty. Prior to trial, the trial court conducted a hearing and denied Small’s Motion
to Suppress evidence of the gun that was recovered from his car.3
2
Small also was charged with assault against a public servant and retaliation.
Those charges were dismissed.
3
The Motion to Suppress sought to exclude evidence of Small’s arrest, any
evidence related to the arrest, testimony by law enforcement about Small’s action
while in detention or under arrest, all written and oral statements Small made to
any law enforcement officers in connection with this case and testimony by law
enforcement regarding such statements. The only matter on appeal relates to the
denial of the Motion to Suppress with respect to introduction of evidence
regarding the gun recovered from Small’s car.
3
A. The Motion to Suppress Hearing
Small’s Motion to Suppress requested that the trial court exclude any
statements obtained from Small, “any tangible evidence seized in connection with
this case, including but not limited to Firearm, namely Smith & Wesson 9mm
Luger,” and all evidence that “relates to the arrest and, and any testimony by the
Houston Police Department or other law enforcement officers or others concerning
any action of [Small] while in detention or under arrest in connection with this
case.”
Three HPD officers testified during the hearing on the Motion to Suppress.
Excerpts of two of the officers’ body-worn camera videos and Creshell’s 911 call
were played during the hearing.
1. Officer Preston
HPD Officer Wesley Preston (“Officer Preston”) testified that on December
31, 2017, he was dispatched to a “suspicious vehicle, citizen following” call. The
911 caller reported “observing a male stuff a body into the trunk of a vehicle.”
Officer Preston knew nothing about the caller or her reliability. When he and his
partner arrived at the scene and located the car, one patrol unit was already at the
scene. When Officer Preston arrived, Small was not “doing anything
inappropriate.”
4
Small was told to exit his car, keep his hands visible, face away from the
officer, and stop moving. Small initially followed the officer’s command. He got
out of his car and kept his hands visible. But then he began to walk toward the
officers. Officer Preston testified that Small was not aggressive and the officers
had not seen him do anything wrong as of yet. However, Small disregarded the
officer’s command to stop walking and face away from the officers. Small turned
and began to walk away from the officers toward his car. When Small dropped his
hands and was ordered to put his hands back up, he did. Small seemed confused
about the commands.
Small was ordered not to return to his car but he did so anyway. Officer
Jose Gonzalez (“Officer Gonzalez”) then grabbed Small to prevent him from
getting in his car. At that point, the officers did not have personal knowledge that
a crime had been committed. Officer Preston testified that Officer Gonzalez did
not grab Small in a violent manner but a struggle ensued between the officer and
Small, who allegedly struck Officer Gonzalez. By now, four officers were at the
scene. All participated in restraining Small until Officer Preston told them to let
him go, because it was easier for one person to subdue a suspect.
Small was handcuffed and arrested for resisting a lawful detention. Officer
Preston testified that Small was detained for a reported criminal activity, but he
acknowledged that he had not seen Small do anything illegal and did not know
5
whether the 911 caller had been truthful. Officer Preston said none of the officers
struck Small as he was being handcuffed and arrested.
After Small was detained, the officers recovered a loaded firearm in plain
view on the front passenger seat of the car and drug paraphernalia. Officer Preston
was not sure who searched Small’s car first. He did not see Small put the gun in
the front passenger seat and did not know who put the gun there. Officer Preston
conceded the officers did not find a human body in the trunk of the car, so the 911
caller was incorrect, and that Small did nothing wrong in his presence.4 He
testified Small did not make any gestures such as trying to grab a weapon from his
car; rather, Small got out of the car with his hands up.
Officer Preston testified that when police believe someone is being forcibly
restrained or that there is a dead body in a car, the officers follow the procedure for
a “high risk or felony traffic stop.” During a felony traffic stop, the officers exit
their vehicles with weapons drawn and pointed at the occupant of the car at issue.
Officers give the car occupant verbal instructions to prevent him from escaping or
accessing a weapon from inside the car. Officer Preston testified that Small would
have been detained regardless of whether he had complied with Officer Preston’s
demands, because the 911 caller reported a potentially “very violent and egregious
felony.” He testified that any person reported to be involved in a kidnapping
4
Officer Preston’s body cam shows that police removed what appears to be a duffel
bag from the trunk of Small’s car.
6
through a call, such as the call made by Creshell, would have been treated the same
as Small. The person would have been stopped by police with guns drawn.
2. Officer Gonzalez
Officer Gonzalez testified that he and his partner, Officer Joseph Adovasio
(“Officer Adovasio”), were the first to arrive at the scene. He was called to the
scene in response to a 911 call about “somebody stuffing a body inside the back of
a trunk.” Small was the only occupant of the car when the police arrived.
During the detention, Officer Gonzalez and Officer Preston were on opposite
sides of Small’s car and had different vantage points. Officer Gonzalez
approached Small because Small was not obeying the officers’ commands. Officer
Gonzalez told Small to raise his hands, but Small did not comply. Officer
Gonzalez grabbed Small, and when he attempted to pull away, Officer Gonzalez
pushed Small against the car to control his body, at which time Small struck the
officer. Small was put in handcuffs and arrested after he struck Officer Gonzalez.
Officer Gonzalez testified he did not see Small commit any crime prior to the
altercation. But once Small was on the ground, he was aggressive.
Officer Gonzalez testified he did not know who put the gun on the front
passenger seat of Small’s car. To Officer Gonzalez’s knowledge, no officer put the
7
handgun on the front passenger seat. Officer Gonzalez testified Small told the
police that the bullet in the loaded gun was for them.5
Officer Gonzalez conceded that no human body or blood was found in the
car, so the 911 caller was wrong. He testified that said any person accused of
having a body in his car would have been treated the same way Small was treated
during the detention and arrest.
3. Officer Adovasio
Officer Adovasio testified that the contents of the 911 call were relayed to
him and Officer Gonzalez through dispatch. Officer Adovasio testified he was the
first person to come into contact with Small’s car. He approached the car because
there were reports of a human body in the trunk. He wanted to make sure he did
not see “blood or anything like that.”
Officer Adovasio testified that when Small exited the car, he was aggressive.
The officers were already on high alert due to the nature of the 911 call. Small did
not comply with the officers’ orders after emerging from the car. Officer Gonzalez
approached Small to keep him from returning to his car. When Officer Gonzalez
approached Small to detain him, Small elbowed the officer in the face. There was
a struggle, but Officer Adovasio does not recall Officer Gonzalez being aggressive
with Small. He recalls that Small was the aggressor, and as a result, the officers
5
See infra, note 7.
8
“took him to the ground.” Officer Adovasio could not recall whether he punched
Small in the body, although he acknowledged it was possible, as Small was on the
ground and they were trying to pull his arms out from underneath his waist.
Officer Adovasio testified that Small was not beaten and punched while he was in
handcuffs. Officer Adovasio subsequently reviewed his report, in which he stated
that he “had to repeatedly hit [Small] in his stomach and in his ribs.”
Small had to be detained before they could investigate whether a human
body was in the trunk of his car. Although the officers did not find a human body
in the car, Officer Adovasio testified that Small assaulting a peace officer was
sufficient reason to arrest Small. When Officer Adovasio approached Small’s car,
he saw a gun on the front passenger seat with the barrel pointing toward the front
of the car. No one approached the passenger side of the car prior to Officer
Adovasio. When Officer Adovasio picked up the gun, he realized it was loaded.
Officer Adovasio did not see Small put the gun on the seat and does not know how
it got there.
The State argued that while there may be some disagreement as to the
propriety of the “manner and means” by which Small was detained, the crux of the
inquiry was whether the officers had “reasonable suspicion to believe that [Small]
had been engaged in criminal activity” and whether that was sufficient basis “for
them to conduct an investigation.” The State argued officers made a felony traffic
9
stop based on the 911 call about a potential kidnapping. At the time, there was no
reason for them to believe that the stop or the basis of the stop or the information
was unreliable. The officers confirmed the identifying information about the car.
The State argued that when officers respond to a scene, they need to be able to rely
on information given by third parties, and that these officers had “reasonable
suspicion to detain [Small] and search his vehicle for the crimes or evidence of the
crime.”
Small argued that while the officers had a right to detain Small, they did not
have the right to arrest him before a weapon was found. Small claimed that the
officers would do whatever was necessary to justify their stop. He argued that
because he was illegally detained, evidence of the gun, the video footage, and
“anything that is relating to this stop” should be excluded pursuant to the Fourth
Amendment.
The trial court denied Small’s Motion to Suppress.
B. The trial
Two witnesses—Officers Preston and Adovasio—testified during the guilt-
innocence phase of trial.
1. Officer Preston
Officer Preston testified that on December 31, 2017, he was dispatched to
investigate an allegation of kidnapping. After the 911 call was received, Officers
10
Adovasio and Gonzalez arrived at the scene. Officer Preston was in the second
unit that arrived.
Officer Preston testified that although he had never met the 911 caller,
Creshell, before, he believed she was credible because in his experience:
When it comes to reportees following incidents that they observed, if they’re
following for a very long amount of time, if they feel like they may
personally be in danger by following this person, it kind of speaks to their
frame of mind as to why they’re following. They’re very much vested if
they continue to follow a person that they believe has committed an offense.
Officer Preston continued:
In my experience, the fact that she was willing to continue to follow
[the car] until law enforcement made it on the scene I thought spoke
to her credibility at the time.
Creshell remained at the scene until the suspect was in custody.
Officer Preston testified that Small was the car’s sole occupant. Small
exited the car shortly after the police arrived and followed some of the officers’
commands. When they first arrived at the scene, the officers did not tell Small
why he was being detained, but all four officers had their guns drawn and pointed
at him. Officer Preston acknowledged that when Officer Gonzalez first grabbed
Small, Small had not done anything wrong. Officer Preston picked up Small and
dropped him on his chest, but he testified he did not observe any other officers
hitting Small or beating him. He saw officers attempting to put Small’s hands
behind his back and a taser being used by Officer Andrew Graff (“Officer Graff”).
11
Small was tasered because the officers were having a hard time controlling Small
to handcuff him.
After Small was subdued, some of the officers began to search his car.
Officer Preston testified about the .9 mm Smith & Wesson handgun Officer
Adovasio found in Small’s car. Officer Preston testified that he did not see Small
with the gun or know how the gun got into the car but he knew it belonged to
Small because Small said it was his gun. After the officers found the gun, the
officers put Small in the back of Officer Gonzalez’s police vehicle.
Officer Preston was wearing a body camera that showed the interaction
between Small and the officers. The jury saw the footage from the camera. After
detaining Small, the officers ran a “person check” on Small and learned he was a
convicted felon. Officer Preston testified that anyone would have been detained in
the same manner with guns drawn based on Creshell’s 911 call.
2. Officer Adovasio
Officer Adovasio testified that when he approached Small’s car, he saw the
911 caller parked on the side of the road, where she remained until the officers
were done. He said he had never interacted with the 911 caller before. Officer
Adovasio testified that all 911 calls are taken seriously.
Officer Adovasio and his partner, Officer Gonzalez, were the first to arrive
at the scene. Officer Adovasio was wearing a body-worn camera, the footage of
12
which was shown to the jury. Whereas a regular traffic stop would be made in
response to something like a broken taillight or a minor traffic violation, Officer
Adovasio testified this was a felony stop with a “possible kidnapping.” The
officers did not recover a human body from the suspect’s car.
Officer Adovasio testified that when he arrived at the scene, he did not see
Small do anything wrong.6 Small was just sitting in his car and emerged from the
car when the police arrived and told him to get out of the car. Small complied with
the initial command to put his hands up. But when Small began walking back
toward his car, the police became concerned because they did not know what was
in the car. When Officer Gonzalez attempted to detain Small, Small struck Officer
Gonzalez in the face, causing him to bleed. The other officers responded by
helping Officer Gonzalez “get the defendant detained.” Officer Adovasio testified
Officer Gonzalez was not aggressive until he was struck in the face.
Small was on the ground telling the officers to handcuff him, but he was
actively fighting them. So Officer Adovasio delivered “multiple strikes to his ribs
and back just to get him to comply because he was still actively fighting us despite
what he was saying.” Small was also tased.
Officer Graff checked the trunk of the car for a human body. Officer
Adovasio checked the interior of the car to make sure there was no sign of a
6
This conflicts with his testimony during the suppression hearing that Small was
“aggressive” when he exited his car.
13
kidnapping in the car. The passenger-side window was open and when he leaned
into the car, Officer Adovasio saw “a firearm sitting in plain view on the [front]
passenger seat.” Officer Adovasio said, “We have a gun.” Small responded,
“Yeah, I got a gun.” Officer Adovasio cleared the gun to make sure there was no
round inside the chamber. While doing that, a round came out of the chamber,
meaning the gun was loaded. When the police mentioned the loaded gun, Small
said, “That one’s for y’all.”7 Officer Adovasio did not see Small put the gun on the
seat.
Officer Adovasio testified he believed Creshell, the 911 caller, was credible
even though he had never talked to her before and he did not have any data as to
whether she was truthful. Although he had believed that a crime had occurred
when the officers stopped Small, Officer Adovasio acknowledged that no crime
had occurred and Small did not commit a crime in the officers’ presence. Officer
Adovasio testified that any suspect involved in a felony traffic stop would have
been treated the same as Small.
The defense did not present any witnesses during the guilt-innocence phase
of trial and no witnesses testified during the punishment phase. The jury convicted
Small of the unlawful possession charge and he pleaded “true” to the enhancement
7
The video from the officer’s body-worn camera reflects that Small said about the
loaded gun, “A loaded gun? . . . You sure right. For you, motherfucker. . . . If I
got a loaded motherfucking gun, that’s for you motherfuckers.”
14
allegations. The jury assessed Small’s punishment at twenty-five years’
confinement in the Correctional Institutions Division of the Texas Department of
Criminal Justice. This appeal ensued.
In two issues, Small argues the trial court erred in (1) admitting the
recording of the 911 call over his Confrontation Clause and hearsay objections, and
(2) denying his motion to suppress evidence recovered during the search of his car
because the officers lacked reasonable suspicion to justify his detention and arrest.
Discussion
A. Standard of Review and Applicable Law
1. Motion to Exclude Evidence
In most circumstances, we review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d 77,
82–83 (Tex. Crim. App. 2016); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.
App. 2003). A trial court abuses its discretion when its decision falls outside the
zone of reasonable disagreement. Henley, 493 S.W.3d at 83; see also Taylor v.
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (stating trial court abuses its
discretion only if its decision is “so clearly wrong as to lie outside the zone within
which reasonable people might disagree”). However, we review de novo the trial
court’s ruling that the admission of the 911 call did not violate Small’s rights under
the Confrontation Clause. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.
15
2006); Cook v. State, 199 S.W.3d 495, 497 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).
The Confrontation Clause provides that the accused has the right to be
confronted with the witnesses against him in a criminal trial. U.S. CONST. amend.
VI. The Confrontation Clause bars out-of-court testimonial statements unless the
witness is unavailable to testify at trial and the defendant had the opportunity to
cross-examine him. Ramjattansingh v. State, 587 S.W.3d 141, 159 (Tex. App.—
Houston [1st Dist.] 2019, no pet.) (citing Martinez v. State, 327 S.W.3d 727, 738
(Tex. Crim. App. 2010) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).
Once a defendant asserts a Confrontation Clause objection, the State bears the
burden to demonstrate (1) that the evidence does not contain testimonial hearsay
statements, or (2) it if does, that the testimonial hearsay statements are admissible
nonetheless. Gutierrez v. State, 516 S.W.3d 593, 597 (Tex. App.—Houston [1st
Dist.] 2017, pet. ref ’d) (citing De La Paz v. State, 273 S.W.3d 671, 681-82 (Tex.
Crim. App. 2008)).
There is no explicit definition of “testimonial.” See Wall, 184 S.W.3d at
734. Generally, a statement is testimonial “if a reasonable person would have
understood that law enforcement officers were conducting a criminal investigation
and collecting evidence for the purpose of prosecution.” Ramjattansingh, 587
S.W.3d at 159. Conversely, a statement is nontestimonial when “the primary
16
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006). Statements made
during a 911 call whose primary purpose is “to enable police assistance for an
ongoing emergency” are not considered testimonial. Ramjattansingh, 587 S.W.3d
at 159 (citing Cook, 199 S.W.3d at 497–98); see also Davis, 547 U.S. at 822. The
Confrontation Clause does not require the exclusion of non-testimonial statements.
Ramjattansingh, 587 S.W.3d at 159; Sanchez v. State, 354 S.W.3d 476, 485 (Tex.
Crim. App. 2011).
Whether a given statement is testimonial is a question of law. Langham v.
State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). In our review, we defer to the
trial court’s “resolution of credibility issues and historical fact.” Id. We consider
whether “the surrounding circumstances objectively indicate that the primary
purpose of the interview or interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.” Id. (quoting De La Paz, 273
S.W.3d at 680).8
8
Small asserts the trial court erred in admitting the 911 call over his “hearsay and
Confrontation objection.” To the extent Small attempts to assert separate hearsay
and Confrontation Clause objections, we note that hearsay and Confrontation
Clause arguments are distinct issues, governed by different standards of review.
Hearsay challenges to a trial court’s admission of evidence are reviewed for abuse
of discretion, while, as noted, whether a statement is testimonial or non-
testimonial under the Confrontation Clause is reviewed de novo. Infante v. State,
404 S.W.3d 656, 662 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Wall
v. State, 184 S.W.3d 730, 742–43 (Tex. Crim. App. 2006)). As briefed, Small’s
17
The admission of a testimonial statement in violation of the Confrontation
Clause is subject to a constitutional harm analysis under Rule of Appellate
Procedure 44.2(a). See TEX. R. APP. P. 44.2(a) (“If the appellate record in a
criminal case reveals constitutional error that is subject to harmless error review,
the court of appeals must reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.”); see also Wall, 184 S.W.3d at 746 (noting that if
there is reasonable likelihood that error materially affected jury’s deliberations,
then error is not harmless beyond reasonable doubt); Langham, 305 S.W.3d at 582(noting that constitutional harm analysis applies to violations of Confrontation
Clause). In such a harm analysis, “the question for the reviewing court is not
whether the jury verdict was supported by the evidence. Instead, the question is
the likelihood that the constitutional error was actually a contributing factor in the
jury’s deliberations in arriving at that verdict—whether, in other words, the error
adversely affected ‘the integrity of the process leading to the conviction.’” Scott v.
State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) (citation omitted).
2. Motion to Suppress
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019);
first issue is solely a Confrontation Clause issue that turns on whether the 911 call
was testimonial or non-testimonial.
18
State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). Under the
bifurcated standard, we give the trial court “almost complete deference” in its
determination of historical facts, especially if based on an assessment of demeanor
and credibility, and the same deference is afforded the trial court for its rulings on
application of law to questions of fact and to mixed questions of law and fact, if
resolution of those questions depends on an evaluation of demeanor and
credibility. Id. (citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)).
We review questions of law de novo. Id. For mixed questions of law and fact, our
review is also de novo. Id.“We view the record in the light most favorable to the trial court’s ruling
and uphold the ruling if it is supported by the record and is correct under any
theory of the law applicable to the case.” Ruiz, 577 S.W.3d at 545; Balderas v.
State, 629 S.W.3d 610, 613–14 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
When a trial court denies a motion to suppress and does not enter findings of fact,
“the evidence is viewed ‘in the light most favorable to the trial court’s ruling’ and
we ‘assume that the trial court made implicit findings of fact that support its ruling
as long as those findings are supported by the record.’” Herrera v. State, 241
S.W.3d 520, 527 (Tex. Crim. App. 2007) (quoting State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000)).
19
A police officer may temporarily detain a person for investigative purposes
“if the officer reasonably suspects that the detained person is connected with a
crime.” Pate v. State, 518 S.W.3d 911, 914 (Tex. App.—Houston [1st Dist.] 2017,
pet. ref’d) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968); Wade v. State, 422 S.W.3d
661, 669 (Tex. Crim. App. 2013)). Reasonable suspicion exists “when a police
officer has a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Pate, 518 S.W.3d at 914 (citing Navarette v.
California, 572 U.S. 393, 396 (2014)). Courts determine if reasonable suspicion
exists by viewing the totality of the circumstances objectively. Id.Whether reasonable suspicion exists “is dependent upon both the content of
information possessed by police and its degree of reliability.” Navarette, 572 U.S.
at 397 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). “The detaining
officer need not personally be aware of every fact that supports a reasonable
suspicion to detain because the content of the information possessed by the police
includes the totality of the information known collectively to the cooperating peace
officers, including dispatchers.” Pate, 518 S.W.3d at 914 (citing Derichsweiler v.
State, 348 S.W.3d 906, 915 (Tex. Crim. App. 2011) (explaining that dispatcher is
regarded as “cooperating officer” for purposes of determining reasonable
suspicion)).
20
A stop may be justified “if the facts underlying the stop are observed by a
civilian informant.” Pate, 518 S.W.3d at 914 (citing Navarette, 572 U.S at 397–
98). Courts have identified several indicia of reliability regarding tips from a
citizen informant. For example, courts consider an informant who is not connected
with the police “inherently trustworthy when advising the police of suspected
criminal activity.” Id.; Taflinger v. State, 414 S.W.3d 881, 885 (Tex. App.—
Houston [1st Dist.] 2013, no pet.). In addition, an informant may be treated as
more reliable if she provides a firsthand account and a detailed description of
wrongdoing. Pate, 518 S.W.3d at 914; 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(observing that contemporaneous eyewitness reports of suspected criminal activity
have “long been treated as especially reliable”); Pipkin v. State, 114 S.W.3d 649,
655 (Tex. App.—Fort Worth 2003, no pet.) (holding traffic stop was justified
because caller was disinterested private citizen who gave detailed description of
suspect’s car and location and made himself accountable for intervention by
providing contact information to dispatcher).
If we find the trial court erred in denying a motion to suppress, we must
conduct a harm analysis to determine whether the error calls for reversal of the
judgment. Gibson v. State, 253 S.W.3d 709, 716–17 (Tex. App.—Amarillo 2007,
pet. ref’d). The question is whether the trial court’s denial of the motion to
21
suppress and the admission of the evidence were harmless beyond a reasonable
doubt. See id. (citing Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App.
1997)). When we apply the “harmless error” test, we consider “whether there is a
‘reasonable possibility’ that the error might have contributed to the conviction.”
Id. (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).
B. Analysis
1. Admitting the 911 Call
Small argues in his first issue that the trial court erred in admitting the
recording of the 911 call over his hearsay and Confrontation Clause objections
because the caller was calm, any potential emergency was not hers, and the call
was made in anticipation of investigation and litigation. During trial, the State
offered the 911 call and Small asserted hearsay and Confrontation Clause
objections:
Pink:9 [T]hat 911 tape is not admissible because I didn’t have a
chance to cross-examine and confront the lady that –
who’s actually witnessed this thing and actually show
that her perception of what actually happened did not
correspond.
...
Koutani:10 So, first and foremost, the exception to the rule against
hearsay would be the business record affidavit that we
tendered for this item. Now, one of the known
9
Clement Pink represented Small at trial.
10
Maroun Khoutani was the State’s prosecutor during trial.
22
exceptions that’s been established by the Supreme Court
to confrontation clause issues is an ongoing emergency
when it’s being recorded for anything – for the non-
primary purpose of a criminal investigation or
prosecution. In this situation the reportee follows the
defendant and reports the ongoing emergency and makes
remarks, like, Oh, my God. I hope they’re okay. I hope
the person in the back of the trunk is okay. So I think
that the exception to hearsay is met through purposes of
the [business record affidavit] and then the confrontation
issue, the exception of the ongoing emergency applies to
this situation.
Pink: . . . The confrontation clause gives me a right to cross-
examine her visual, her perception on why did she come
to this conclusion. You can’t just have someone say, Oh,
it’s a body. It’s this, and allow that in through a witness
that’s – that doesn’t have any knowledge of it.
The Court: I’ll overrule. Do you have your business records
affidavit?
Koutani: Absolutely, yes, ma’am.
The Court: Overrule the objections right now. I want the business
reports [sic] affidavit. If you do have that, let’s go that
route first and then go from there. As of right now, I’m
going to overrule the objection.11
To determine whether the admission of a 911 call violated Small’s rights
under the Confrontation Clause, we must first determine whether the statements in
the call were testimonial. See Davis, 547 U.S. at 822; Vinson v. State, 252 S.W.3d
336, 338–39 (Tex. Crim. App. 2008). As noted, statements made during a 911 call
11
Small does not appeal the admission of the business record affidavit. Small’s first
argument is based solely on the determination of whether the 911 call was
testimonial or non-testimonial.
23
“under circumstances objectively showing that the primary purpose of the call was
to enable police assistance for an ongoing emergency” are not testimonial.
Ramjattansingh, 587 S.W.3d at 159 (citing Cook, 199 S.W.3d at 497–98) (relying
on Davis, 547 U.S. at 822–23)); see also Kinnett v. State, 623 S.W.3d 876, 909
(Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (“Statements made during 911
calls are typically considered nontestimonial because they are ‘a cry for help’ or
‘the provision of information enabling officers immediately to end a threatening
situation.’”) (citing Davis, 547 U.S. at 832).
In Davis, the United States Supreme Court clarified the definition of
“testimonial” for Confrontation Clause purposes:
Without attempting to produce an exhaustive classification of all
conceivable statements—or even all conceivable statements in
response to police interrogation—as either testimonial or
nontestimonial, it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
547 U.S. at 813-14. The Court enumerated four factors to consider in determining
whether a statement is testimonial:
(1) the caller spoke about events as they took place, rather than
describing past events; (2) the caller requested assistance for an
ongoing emergency, rather than providing a narrative report of crime
24
absent imminent danger; (3) the operator’s questions and the caller’s
answers were necessary to resolve a present emergency, rather than to
learn of past events; and (4) the frantic nature of the call and the issue
of safety dominated over a sense of formal information gathering.
Ramjattansingh, 587 S.W.3d at 160 (citing Davis, 547 U.S. at 827). In Davis,
which involved a 911 call made by a victim of domestic violence, the Court
concluded the 911 call was not testimonial because the caller was “seeking aid, not
telling a story about the past.” 547 U.S. at 831.
Small argues that Creshell’s 911 call was testimonial. He speculates without
citation to any authority that the likelihood of an ongoing kidnapping emergency
“was greatly diminished by the description of [Small’s] reckless driving and by the
fact that he stopped at a bar. Someone with a kidnap victim or dead body in their
car surely would not draw attention to themselves by driving on the rim of his tire,
swerving, and driving on to the median of a busy road in the late evening of New
Year’s Eve when law enforcement would be on the alert for drunk drivers.” Small
also argues that Creshell “did not seem excited—she told the dispatcher she was
nervous but there was no tremor in her voice and her tone was even.” When the
officers arrived at the scene, Creshell told the officer to whom the dispatcher
25
transferred her, “I know there was a person getting in the trunk,” and, “Please let
them be O.K,” but she spoke “calmly,” during the call, according to Small.12
Small relies on Hereford v. State, 444 S.W.3d 346 (Tex. App.—Amarillo
2014, no pet.) in support of his argument that Creshell’s statement was testimonial.
In Hereford, an anonymous 911 caller reported that someone named Anthony
Hereford was “dealing narcotics” at a specific hotel. Id. at 349. Neither the call
nor a transcript was included in the appellate record, and it was unclear to the court
of appeals when the call was made. Id. at 349, 351. Hereford objected to the
admission of evidence of the 911 call as hearsay and violative of his rights under
the Confrontation Clause. Id. at 349. The court of appeals held that the
anonymous 911 call was testimonial, as there was an “absence of any indicia
suggesting the presence of some emergency,” and the purpose of the call was to
develop “a factual predicate for later litigation” or to investigate a crime. Id. at
352.
Small identifies one discreet sentence in Hereford in support of his
argument: “One cannot reasonably infer . . . that the caller was seeking help or
was otherwise facing some immediate threat to his or her safety or well-being.” Id.We do not interpret that sentence so narrowly as to require any non-testimonial 911
12
A review of the submitted audio recording reveals that while her voice was “even”
during most of the call, Creshell sounded agitated at times, and she had to be told
repeatedly to answer the officer’s and dispatcher’s questions.
26
call to be about danger to the caller, as opposed to immediate danger to someone
else or the public at large. Indeed, caselaw says otherwise. See, e.g., Michigan v.
Bryant, 562 U.S. 344, 363 (2011) (noting that “whether an emergency exists and is
ongoing is a highly context-dependent inquiry” and discussing ongoing
emergencies “that threaten[] the police and public”); Ramjattansingh, 587 S.W.3d
at 161 (holding 911 caller’s “report of a drunk driver on the road concerned the
sort of ongoing emergency likely to render statements made in connection with it
non-testimonial.”); Kearney v. State, 181 S.W.3d 438, 442 (Tex. App.—Waco
2005, pet. ref’d) (holding 911 calls “are not given in response to structured police
questioning or with an eye to [ ] future legal proceedings but are initiated by a
victim or witness to obtain police assistance”) (emphasis added); Guzman v. State,
No. 02-18-00332-CR, 2019 WL 2223213, at *2, 4 (Tex. App.—Fort Worth May
23, 2019, no pet.) (mem. op., not designated for publication) (holding trial court
did not abuse its discretion in admitting 911 call made by caller who “heard
someone get shot and had seen a guy run out of a neighboring apartment with a
gun”); Sissel v. State, No. 03-19-00225-CR, 2021 WL 1112906, at *1, 7 (Tex.
App.—Austin Mar. 24, 2021, no pet.) (mem. op., not designated for publication)
(holding 911 call made by mother whose daughter heard disturbance at neighbor’s
apartment was non-testimonial and defendant’s Confrontation Clause rights were
not violated by admission of the call).
27
Moreover, Hereford is inapposite. First, there was no indication who made
the 911 call or when it was made, and the call itself was not in evidence at trial.
444 S.W.3d at 349, 351. The only evidence in Hereford was testimony by the
officers about what they were told of the call. Id. at 351. Second, the call, which
reported a “specific person selling drugs at a specific location” was merely the
“reporting [of] the occurrence of a crime, which crime the officers were
subsequently dispatched to investigate,” without “any indicia suggesting the
presence of some emergency.” Id. at 351–52.
In the present case, there was indicia of an emergency—a purported
kidnapping. And an analysis of the Davis factors indicates the 911 call was not
testimonial. First, Creshell described events as they took place and she followed
Small’s car, which she believed contained a body in the trunk, during the 911 call.
Second, she requested assistance for what she perceived to be an ongoing
emergency. Third, the 911 dispatch operator and the officer to whom she was
transferred asked Creshell questions, the answers to which were necessary to
resolve the present emergency of a potential active kidnapping. Fourth, while not
“frantic,” Creshell’s statements during the call reflect that the issue of safety
dominated over the issue of information gathering. She told the dispatcher, “It
looks like someone just put somebody in the trunk of their car,” “I’m scared to get
up close,” “Oh my God,” “I was passing by and I see somebody’s legs kicking and
28
he was trying to push them up into the trunk,” “I know there was a person that was
getting in the trunk,” and “Please let them be O.K.”
This Court used the Davis analysis in Ramjattansingh. In Ramjattansingh, a
tow truck driver (“Wilson”) called 911 and reported he was following a “drunk
driver” who was “all over the road” and had nearly caused several accidents. 587
S.W.3d at 147. Wilson described the vehicle to the 911 operator and gave the
license plate number. Id. Soon after the call, the driver who Wilson was following
pulled off the road into a public parking lot. Id. Wilson agreed to stay in the
parking lot with his lights flashing until law enforcement arrived. Id. The driver
contended the trial court violated his Confrontation Clause rights by allowing the
jury to listen to a recording of Wilson’s 911 call. Id. at 159.
Applying the Davis factors, we held the 911 call was not testimonial.
Rather, the call was made “mainly to enable a police response to an ongoing
emergency.” Id. at 160. Wilson requested police assistance to deal with the driver
who was on the road; Wilson told the dispatcher the make, model, color, and plate
number of the driver’s car; and Wilson pulled into a parking lot after the driver and
told authorities he would stay there with his flashers on until police arrived. Id. In
sum, we held
Wilson related events as they happened, reporting a drunk driver who
was still on the road and posed an ongoing danger, his statements
were for immediate police assistance were frequently made without
prompting or in response to questioning, and were spontaneous and
29
concerned public safety. Each of the factors identified in Davis . . .
show that Wilson’s 911 call was not testimonial.
Id. at 161.
Cook also dealt with a 911 caller who reported a drunk driver. 199 S.W.3d
at 496. After another driver made an obscene gesture and threw a beer bottle at the
caller’s truck, the caller called 911 and told the operator that the other driver was
drunk. Id. The recording of the 911 call was offered at trial but the caller did not
appear as a witness. Id. We noted that, consistent with Davis, “Texas courts
generally have looked to the degree of formality of a declarant’s interaction with
police, the purpose and structure of police questioning, and the likelihood that the
declarant expects that the statements could be used in a criminal prosecution.” Id.at 497–98; see also Spencer v. State, 162 S.W.3d 877, 882 (Tex. App.—Houston
[14th Dist.] 2005, no pet.). We held the trial court did not err in admitting the
recording of the 911 call because the call concerned “a potential crime in
progress,” was initiated by the caller, was informal, and took place at the beginning
of the police investigation. 199 S.W.3d at 498. We observed that “[s]tatements
made to police during contact initiated by a witness at the beginning of an
investigation are generally not considered testimonial.” Id.; see also Ruth v. State,
167 S.W.3d 560, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating “we
see nothing in the record suggesting that this call, in which a witness to a crime in
30
progress at her home summoned the police, deviates from the typical,
nontestimonial 911 call”).
As in Ramjattansingh and Cook, we conclude Creshell’s statements during
the 911 call were not testimonial. Creshell related events as they unfolded and she
made them to enable police to respond to what she perceived was an ongoing
emergency. See Ramjattansingh, 587 S.W.3d at 160–61; Davis, 547 U.S. at 827–
28. Thus, Small’s Confrontation Clause rights were not violated by the admission
of the 911 call. We overrule Small’s first issue.
2. Denying the Motion to Suppress
Small argues the trial court erred in denying his Motion to Suppress
evidence recovered from his car because the 911 call “did not provide the officers
with sufficient information to rise to the level of reasonable suspicion to justify an
investigative detention.” He states that although Creshell “made herself
accountable for the intervention, by providing her name and telephone number to
the dispatcher,” the officers did not speak to her or know anything about her when
they detained Small. Small argues that the officers “did nothing to corroborate the
caller’s account of a possible kidnapping or dead body” before detaining Small at
gunpoint, and that once he got out of his car with his hands up, the officers should
31
have opened the trunk “and immediately determined there was no one, alive or
dead, in that trunk. That should have ended the investigative detention.” 13
The trial court conducted a hearing on Small’s Motion to Suppress prior to
trial. Small argued during the hearing that he should not have been arrested based
on an anonymous tip. He argued he did not know how the “gun got on the scene.”
He argued:
So any citizen accused, a lawyer, a doctor, a professor, a student that’s
led to believe that they may have done something wrong, I can pull
my gun on you and I’m going to stop you and I can search your car
because I believe you have committed a crime. That’s not what the
constitution is about. It’s about having reasonable suspicions and
intelligible suspicions that a crime has been committed[.] And in this
case no body was found. We are not saying they didn’t have a right to
detain him, but they didn’t have the right to arrest him. And they
arrested him prior to anything being found.
Small asked the trial court to exclude the evidence of guns, videotape, “anything
that is relating to this stop” as “fruits of a poisonous tree. It actually is coming in
because he was illegally detained. Did they have a call? Absolutely, they had a
call, Judge. Was it credible? Who says? But it [a victim] wasn’t there.”
13
During the suppression hearing, Officer Preston testified that the officers could not
immediately open the trunk after stopping Small because they
need[ed] to separate the defendant from the vehicle because if we
attempt to have the defendant open the trunk while still in the
vehicle, that provides him a means of egress. He could drive away.
He can throw the vehicle in reverse and he could access a weapon
while still inside the vehicle. So it would be important to separate
him from where we believe the body may be.
32
The State argued that while the trial court and defense counsel may have
disagreed with the force used to detain Small, the central question was whether the
officers had “reasonable suspicion to believe that [Small] had been engaged in
criminal activity and was that basis sufficient for them to conduct an
investigation?” The State argued the officers had “reasonable suspicion to detain
[Small] and search his vehicle for the crimes or evidence of the crime.” When
officers respond to a scene, the State argued, “we want them to be able to rely on
information given by third parties because if they don’t have that information and
they’re unable to investigate things like a body being stuffed in the back of a
vehicle, there will arise an opportunity where a body is actually found in the back
of a vehicle when it’s too late.”
We find Navarette v. California, 572 U.S. 393 (2014) is instructive. In
Navarette, the Supreme Court considered whether information provided by an
anonymous tipster contained sufficient “indicia of reliability” to justify an
investigative stop. Id. at 397. In that case, the California Highway Patrol received
a report from an anonymous caller that a silver Ford F–150 pickup truck traveling
southbound on the highway had run the caller off the road. Id. at 395. A few
minutes later, a highway patrolman encountered a truck matching the one
described by the caller traveling in the direction reported. Id. The patrolman
pulled the truck over and a second patrolman arrived on the scene. Id. As the
33
officers approached the truck, they smelled marijuana and a search of the truck bed
revealed thirty pounds of marijuana. Id. The officers arrested the driver and
passenger. Id. at 395–96. The driver and passenger moved to suppress the
evidence, arguing the traffic stop violated the Fourth Amendment because the
patrolmen did not have a reasonable suspicion of criminal activity. Id. at 396. The
motion to suppress was denied and the suspects pleaded guilty to transporting
marijuana. Id. The California Court of Appeal affirmed, holding the officer had
reasonable suspicion to conduct the investigative stop. Id.Though the record lacked any indication that the patrolman observed the
pickup truck driving erratically, the Supreme 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 knowledge, was contemporaneously
made, and was made to the 911 emergency system. Id. at 399–400. The Court
noted that “[e]ven a reliable tip will justify an investigative stop only if it creates
reasonable suspicion that ‘criminal activity may be afoot.’” Id. at 401 (citing Terry
v. Ohio, 392 U.S. 1, 30 (1968)). The Court held that the traffic stop was proper
because the conduct alleged by the 911 caller, “viewed from the standpoint of an
objectively reasonable police officer, amount[ed] to reasonable suspicion” of drunk
driving. Id. at 402 (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)).
34
Pipkin v. State, 114 S.W.3d 649 (Tex. App.—Fort Worth 2003, no pet.) also
is illustrative. The salient issue in Pipkin was whether information relayed from a
911 caller to a police officer via police dispatcher “was sufficient to justify the
investigative detention that led to [Pipkin’s] arrest.” Id. at 653. The caller in
Pipkin reported a dark blue sports utility vehicle that was traveling at an
“extremely slow” pace. Id. at 652. The caller passed the SUV as he was talking to
the police dispatcher and saw the driver lighting a crack pipe. Id. at 653. The
caller gave the dispatcher the SUV’s license plate number, description, and
location, as well as his own contact information and destination. Id.An officer who was patrolling the area testified he received a call from
dispatch about an erratic driver on the freeway. Id. The officer testified that he saw
the vehicle and began following it, ultimately pulling it over. Id. The officer said
he did not recall seeing any traffic violations by the SUV but stopped the vehicle
based on the citizen’s call about the driver smoking a crack pipe. Id. The officer
approached Pipkin and asked if he had been smoking and Pipkin told him he “had
smoked a joint earlier.” Id. The officer asked Pipkin to get out of the SUV. Id.Another officer arrived and saw Pipkin throw a rock of cocaine to the ground. The
police searched the SUV and found more cocaine, rolling papers, a glass tube, and
a lighter in the center console of the SUV. Id.35
Pipkin filed a motion to suppress the evidence found during the detention,
arguing the detention that led to his arrest and the search and seizure of drug
paraphernalia from his vehicle “was conducted without reasonable suspicion.” Id.
at 652. The trial court denied the motion. Id. The court of appeals observed that
to make an investigative stop
the investigating officer must possess a reasonable suspicion based on
specific articulable facts that, in light of the officer’s experience and
general knowledge, would lead the officer to the reasonable
conclusion that criminal activity is underway and the detained person
is connected to the activity.
Id. at 653–54 (citing King v. State, 35 S.W.3d 740, 743 (Tex. App. —Houston [1st
Dist.] 2000, no pet.)). The stop must be based on more than “mere hunch or
suspicion.” Id. at 654. Considering “the totality of the circumstances,” the court
held the information from the caller was “sufficiently reliable to justify the
investigative stop[.]” Id. at 656. The court noted that the caller was a “private
concerned citizen” not connected with the police; he gave the dispatcher a
description of the SUV and its location and “personally watched and reported
[Pipkin’s] actions as he drove past” him; and gave the police department his
contact information so he could be “held accountable for his intervention.” Id. at
655. The court affirmed the trial court’s denial of the motion to suppress. Id. at
656.
36
Small relies on Florida v. J.L., 529 U.S. 266 (2000) for the proposition that
an accurate description of a subject’s location and appearance is reliable only to the
extent it identifies the person accused by a tipster of a crime, but it does not show
the tipster has knowledge of “concealed criminal activity.” Id. at 272. But the
tipster in J.L., who alerted police that someone in a plaid shirt at a bus stop was
carrying a gun, was anonymous and left the police without the ability to test his
knowledge or credibility. Id. at 271. On the other hand, Creshell provided her
name, a callback number, waited at the scene for law enforcement to arrive, and
described what she believed to be ongoing criminal activity, all of which bolstered
her credibility as an informant. Thus, J.L. is inapposite.
Small also relies on Alabama v. White, 496 U.S. 325 (1990), where a traffic
stop was held to be justified, in asserting the evidence recovered during his traffic
stop should be suppressed. White stemmed from an anonymous telephone tip that
White would be leaving an apartment at a specific time in a specific vehicle and
going to a specific motel in possession of cocaine. Id. at 327. The police went to
the apartment, followed White in her vehicle, and stopped White just short of the
motel. Id. The officers told White she was stopped for suspicion of cocaine
possession and asked if they could look for cocaine. Id. White gave them
permission to search and they found marijuana. Id. She was arrested and at the
police station, the police found three milligrams of cocaine in White’s purse. Id.37
White pleaded guilty but appealed the denial of her suppression motion. Id. at
327–28. Alabama’s Court of Criminal Appeals reversed the conviction, holding
the officers did not have the reasonable suspicion required to justify the
investigatory stop of White’s car and the marijuana and cocaine were “fruits of
[White’s] unconstitutional detention.” Id. at 328. The Supreme Court reversed,
holding the investigatory stop of White’s car was justified and noting the
anonymous tip contained many details “relating not just to easily obtained facts
and conditions existing at the time of the tip.” Id. at 332 (quoting Illinois v. Gates,
462 U.S. 213, 245 (1983)). The Court noted the proposition “that because an
informant is shown to be right about some things, he is probably right about other
facts that he has alleged, including the claim that the object of the tip is engaged in
criminal activity.” Id. at 331 (citing Gates, 462 U.S. at 244). White does not
support Small’s argument.
In the present case, when we view the record in the light most favorable to
the trial court’s ruling, as we must, we conclude the trial court’s ruling denying the
motion to suppress is supported by the record. See Ruiz, 577 S.W.3d at 545. The
police testified during the suppression hearing that they would have treated any
traffic stop based on a call about a kidnapping the same as Small’s stop. The
traffic stop was based on Creshell’s 911 call, which provided detailed information
about Small’s car, his location, Creshell’s identifying information and location, and
38
her belief that she was witnessing a kidnapping. She remained on the call for
several minutes with the dispatcher while she followed Small and relayed his
updated location, and she remained at the scene until the officers arrived. See
Pipkin, 114 S.W.3d at 655 (“A detailed description of the wrongdoing, along with
a statement that the event was observed firsthand, entitles an informant’s tip to
greater weight. . . . A tip also deserves great weight if the person put herself in a
position to be held accountable for her intervention.”) (citations omitted). When
the officers arrived at the scene, the information Creshell provided was sufficiently
corroborated given that Small was at the location she identified, and he was sitting
in a parked car matching the description Creshell provided of a white, older-model
sedan with a flat tire.
Under the totality of the circumstances, the information provided by Creshell
was sufficiently corroborated and provided the officers with reasonable suspicion
for the investigative stop. See Navarette, 572 U.S. at 402.14 Thus, the trial court
properly denied the motion to suppress. We overrule Small’s second issue.
14
The Supreme Court has recognized that reasonable suspicion “need not rule out
the possibility of innocent conduct.” Navarette v. California, 572 U.S. 393, 403
(2014) (citing United States v. Arvizu, 534 U.S. 266, 277 (2002)).
39
Conclusion
We hold that the statements made on the 911 call did not violate Small’s
rights under the Confrontation Clause. We further hold that the 911 call contained
sufficient indicia of reliability so as to justify the investigative stop.
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
40