Troy Edward Karr v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00123-CR
___________________________
TROY EDWARD KARR, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CR18-1028
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
On appeal from his conviction and seven-year sentence for methamphetamine
possession, see Tex. Health & Safety Code Ann. § 481.115(c), Troy Edward Karr
challenges the trial court’s denial of his motion to suppress, claiming that the officer
who stopped him did not have reasonable suspicion to do so under the United States
Constitution, the Texas Constitution, or both. U.S. Const. amend. IV; Tex. Const.
art. I, § 9. Because we disagree, we affirm the trial court’s judgment.
Brief Background
The State indicted Karr for possession of methamphetamine after a Parker
County Sheriff’s Office deputy found it during a traffic stop. Although Karr filed a
motion to suppress the methamphetamine, claiming that the stop violated the Fourth
Amendment of the United States Constitution and Article 1, Section 9 of the Texas
Constitution, the trial court denied the motion. Karr and the State agreed to findings
of fact and conclusions of law, which the trial court signed. Karr then pleaded nolo
contendere to the possession offense, and the trial judge sentenced him to seven
years’ confinement, in accordance with the plea bargain. Karr appeals his conviction
and sentence, challenging only the suppression ruling. See Tex. R. App. P.
25.2(a)(2)(A).
Standard of Review and Applicable Law
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
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Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating 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 the trial court grants a motion to suppress and files accompanying
findings of fact and conclusions of law, and the sole witness at the suppression
hearing is the arresting officer, our only question is whether the trial court properly
applied the law to the facts it found. See State v. Gray, 158 S.W.3d 465, 467, 469 (Tex.
Crim. App. 2005); Guzman, 955 S.W.2d at 86–87, 89.
The methamphetamine was found after a traffic stop. Such a stop 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 reasonably suspects 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
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soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an
objective standard that disregards the detaining officer’s subjective intent and looks
solely to whether the officer has an objective basis for the stop. Id.
An officer may not act solely on a hunch, but his determination of “the
likelihood of criminal activity need not rise to the level required for probable cause,
and it falls considerably short of satisfying a preponderance of the evidence standard.”
Tanner v. State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.) (citing United
States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751 (2002)). The facts adduced to
give rise to a reasonable suspicion need not show that a person has committed, is
committing, or is about to commit a particular and distinctively identifiable penal
offense. Derichsweiler v. State, 348 S.W.3d 906, 916–17 (Tex. Crim. App. 2011).
Instead, the articulable facts need only show (1) the occurrence of “some activity out
of the ordinary . . ., [(2)] some suggestion to connect the detainee to the unusual
activity, and [(3)] some indication that the unusual activity is related to crime.” Johnson
v. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021). Thus, when determining
whether reasonable suspicion existed, the court does not inquire whether conduct is
innocent or guilty but considers instead “the degree of suspicion that attaches to
particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct.
1581, 1587 (1989).
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Suppression-Hearing Evidence
At the suppression hearing, Parker County Sheriff’s Office Corporal Gerry
Olson1 testified that while driving at 2:30 a.m. on Highway 199 just outside
Springtown, he saw a “dark-colored pickup truck” at the RDL tire shop, which had
been closed for more than six hours. According to Olson, although there are no bars
or restaurants in the tire shop’s “general area,” it is a “very industrial area” that has “a
high crime rate where thefts and burglaries . . . occur”: “there’s several businesses, gas
stations that are constantly broke into. There’s also low-income housing areas where
a lot of activity does occur, trailer parks and such, where crime is usually afoot.”
Olson considered the truck’s presence unusual because he patrolled that area of
Highway 199 regularly and normally did not see anybody in that parking lot at 2:30
a.m. He thought it was also suspicious because the business was not open at that
time, and employees were not supposed to be there.
When Olson first saw the truck, it was among other vehicles in the parking lot,2
but it was in motion, backing up “very close” to the other vehicles. Olson could see
the truck’s taillights, which were pointed toward the road; the headlights were “facing
the other direction.” Olson testified that the truck driver’s activity that he observed
1
At the time of the traffic stop, Olson was a deputy and had been a licensed
Texas peace officer for eight years. He became a corporal in 2019, and the trial court
referred to him by that title.
According to Olson, the business would “normally . . . leave several cars
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parked out in front . . . that they work on that’s left there overnight.”
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was consistent with that of someone who was looking for vehicles and valuables
inside vehicles to steal.
According to Olson, the truck’s driver did not appear to be in distress or to be
a danger to himself or others, nor did he appear to be having any problems with the
vehicle. Nobody had reported any potential burglaries or thefts in the area that night,
but Olson did not know that until after the stop. While Olson admitted that when he
stopped the truck, he had not observed any traffic violation and did not have
probable cause for an arrest, he testified that he had a hunch that something was
wrong:
Q. You had no reason to suspect that theft or any other criminal activity
was afoot aside from the fact that someone has their taillights on in a
parking lot?
A. After speaking with him, it was determined that -- not during the
stop, no.
Q. There’s nothing you can point to besides the taillights and the time
of night that you suspected criminal activity afoot?
A. Being in the parking lot at that hour in that area, I believed that crime
was afoot during that time.
The trial court also admitted Olson’s arrest report into evidence. In it, he
describes how he first noticed the truck and eventually made a traffic stop:
On September 13, 2018[,] at approximately 0239 hours, I, Deputy G.
Olson, was on routine patrol in the 1300 block of State Highway 199
East, Springtown, Parker County, Texas. I passed a local business
identified as RDL Tires . . . . While passing the business, I observed a
dark colored pickup backing up to several vehicles in the parking lot. I
drive this area regularly and know employees at this business do not
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normally work during those hours. As I turned around to check on the
vehicle, I observed it to pull out of the parking lot and begin driving
west in the 1300 block of State Highway 199 East. I caught up to the
vehicle in the 1000 block of State Highway 199 East and activated my
emergency lights for the intent of conducting an investigation for a
suspicious vehicle.
When Olson stopped Karr, he found that Karr had several active arrest
warrants. And after Karr gave Olson consent to search the truck, Olson found
methamphetamine.
The trial court found that “[t]he primary purpose for Corporal Olson’s stop of
[Karr’s] pickup truck was investigating criminal activity.” It concluded, based on the
facts presented at the suppression hearing, that “Corporal Olson had reasonable
suspicion to make a warrantless stop of [Karr’s] vehicle.”
Analysis
Karr contends that Olson stopped him based solely on a hunch that did not
amount to reasonable suspicion. In support of his argument, Karr analogizes the
facts here to the facts in cases in which the courts held that the officer did not have
reasonable suspicion for a stop.3 And he attempts to distinguish the facts of other
cases in which the courts conversely held that the officers did have reasonable
3
See Sibron v. New York, 392 U.S. 40, 44–50, 62–64, 88 S. Ct. 1889, 1893–96,
1902–03 (1968); Tunnell v. State, 554 S.W.2d 697, 698 (Tex. Crim. App. 1977); State v.
Police, 377 S.W.3d 33, 37–40 (Tex. App.––Waco 2012, no pet.); Klare v. State, 76
S.W.3d 68, 72–77 (Tex. App.––Houston [14th Dist.] 2002, pet. ref’d); see also Gurrola v.
State, 877 S.W.2d 300, 301–05 (Tex. Crim. App. 1994).
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suspicion.4 But, as the United States Supreme Court has observed, this approach is
problematic in this context. Because “the mosaic . . . analyzed for a reasonable-
suspicion or probable-cause inquiry is multi-faceted,” the Court has instructed us that
“one determination will seldom be a useful ‘precedent’ for another” unless the facts
are so similar to those of a prior case that the same outcome is required to be faithful
to the law. Ornelas v. United States, 517 U.S. 690, 698, 116 S. Ct. 1657, 1662 (1996)
(quoting Illinois v. Gates, 462 U.S. 213, 238 n.11, 103 S. Ct. 2317, 2332 n.11 (1983)).
Even if we engaged in such an endeavor, adherence to the outcome in the cases
Karr urges us to follow is not necessary because they are not analogous. In those
cases, the appellants were not engaged in any suspicious behavior. See Sibron, 392 U.S.
at 44–50, 88 S. Ct. at 1893–96 (officers watched appellant talking to known narcotics
addicts in public places at several times over an eight-hour period); Tunnell, 554
S.W.2d at 697–98 (officer saw appellant and two other men parked in hospital parking
lot at 2:16 a.m. less than a mile away from a factory with 24-hour operations); Police,
377 S.W.3d at 37 (officer familiar with neighborhood spotted appellant’s unfamiliar
car and then saw appellant turn into residential subdivision on horseshoe drive, turn
4
See Furr v. State, 499 S.W.3d 872, 875–76, 879–81 (Tex. Crim. App. 2016);
Derichsweiler v. State, 348 S.W.3d 906, 909 (Tex. Crim. App. 2011); Amorella v. State, 554
S.W.2d 700, 701 (Tex. Crim. App. 1977); Hernandez v. State, 523 S.W.2d 410, 411 (Tex.
Crim. App. 1975); Cotton v. State, 480 S.W.3d 754, 755–59 (Tex. App.––Houston [1st
Dist.] 2015, no pet.); Tanner v. State, 228 S.W.3d 852, 856–57 (Tex. App.––Austin
2007, no pet.); Davis v. State, 783 S.W.2d 313, 315–17 (Tex. App.––Corpus Christi–
Edinburg 1990, pet. ref’d, untimely filed).
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around on horseshoe drive, and exit residential subdivision); Klare, 76 S.W.3d at 71(officer noticed appellant parked behind strip shopping center, facing 24-hour
convenience store, at 2:30 a.m.).
Here, it was not Karr’s “mere presence in the parking lot of a closed business at
2:30 a.m. in a ‘high crime area’” alone that aroused Olson’s suspicion. Instead,
Olson’s suspicion arose from those facts combined with Karr’s driving in the parking
lot in a manner consistent with trying to look for something of value in the vehicles
that had been left in the parking lot overnight. Cf. Johnson, 622 S.W.3d at 388
(“Sergeant Cox was confronted with unusual circumstances that, from an objective
standpoint, gave rise to reason to believe that something criminal had occurred, was
occurring, or was about to occur.”). In that regard, the facts here are more akin to the
facts in Tanner, 228 S.W.3d at 856–67, one of the cases Karr argues is distinguishable,
and at least one other case with similar facts.5
Karr has challenged each of the relevant facts piecemeal, arguing that the time
of day alone, the location alone, and the fact that the general area was a high-crime
area, alone, are not sufficient to support reasonable suspicion. Karr also disregards
5
See Marical v. State, No. 05-16-00988-CR, 2017 WL 2871431, at *1, *3–4 (Tex.
App.—Dallas June 29, 2017, pet. ref’d) (mem. op., not designated for publication)
(around midnight, officer saw car pull out of normally restricted-access alley behind
closed downtown businesses, in area where there had been a history of break-ins).
Although Marical is even further removed from having any precedential value because
it is unpublished, see Tex. R. App. P. 47.7(a), we cite it as an example of another case
in which the driver’s behavior at the particular location and time of day gave the
officer reasonable suspicion under the totality of the circumstances.
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Olson’s testimony about the high-crime area because “nothing else in the record . . .
support[s] this contention” and because it was not included as a fact in the arrest
report. But, in evaluating whether reasonable suspicion existed, we may not consider
the circumstances in a piecemeal, divide-and-conquer fashion, nor are we to focus on
what the record and findings did not contain. See Arvizu, 534 U.S. at 274–75, 122 S.
Ct. at 751; Furr v. State, 499 S.W.3d 872, 880 n.8 (Tex. Crim. App. 2016), State v.
Kerwick, 393 S.W.3d 270, 274 (Tex. Crim. App. 2013). Instead, we must consider each
of the facts in light of the totality of the circumstances, keeping in mind that
“reasonable suspicion may exist even if those circumstances standing alone may be
just as consistent with innocent activity as with criminal activity.” Kerwick, 393 S.W.3d
at 274.
Based upon the record before us, we conclude that Olson did not base his
suspicion solely on Karr’s presence at the location itself or solely on the time of day.
Based on the totality of the circumstances, Olson had reasonable suspicion to stop
and briefly detain Karr to investigate possible criminal activity. Thus, we hold that the
trial court did not err by denying the motion to suppress, and we overrule Karr’s two
issues challenging that ruling under the United States and Texas Constitutions.
We affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
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Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 10, 2021
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