             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1837-11

                                    THE STATE OF TEXAS

                                                  v.

                        STACIE MICHELLE KERWICK, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            TARRANT COUNTY

       J OHNSON, J., filed a dissenting opinion, in which C OCHRAN and A LCALÁ, JJ.,
joined.

                              DISSENTING OPINION

       The entire record of testimony in this suppression hearing covers less than 5 pages–113

lines–including identification of the single witness, objections, and rulings from the court. Even if

one believes, as the trial court did and as I do, that Officer Bradford testified truthfully, the record

simply does not contain enough information to establish reasonable suspicion. The court was the

finder of fact and, it seems to me, every bit of the testimony depended on the credibility and

demeanor of the single witness, Officer Bradford. We are thus required to give almost total

deference to the trial judge’s determinations of historical facts and mixed questions of law and fact
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that rely on credibility and demeanor when supported by the record. Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997).

        Below, I set out the sixteen findings of fact, the record testimony in regard to that finding,

and my comments about what the testimony contributes toward establishing probable cause.

        Finding of Fact (FF) # 16
        16. Officer Bradford has been employed by the Fort Worth Police Department since 2000.
               (R.R. at 5, 6)

        Q       How long have you been with the police department?
        A       Since 2000.

        FF # 1
        1. At approximately 12:19 a.m. on the morning of August 14, 2009, Officer Bradford was
               dispatched to 2411 North Main (PR’s Bar) in response to a fight. (R.R. at 6)

        Q       Were you working on August 14th, 2009?
        A       I was.
        ...
        Q       Around 12:19 -- I’m talking about 12:19 a.m., were you dispatched anywhere?
        A       I was.
        Q       And where to?
        A       To 2411 North Main, PR’s.
        Q       And why were you dispatched there?
        A       In reference to a fight.

        Officer Bradford was dispatched at 12:19 a.m, but we do not know when the call was

received or when Officer Bradford arrived at the bar. Was it soon enough that most of the people

present at the time of the call are still present at the scene?

        FF # 2
        2. According to the dispatch, several people were fighting in front of the bar. (R.R. at 7)

        Q       What did you know about that fight before you got to that location?
        A       The details stated several people fighting out front in front of the bar.
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       FF # 3
       3. Upon arrival, Officer Bradford observed several people standing outside the bar.
               (R.R. at 7)
       FF # 4
       4. Officer Bradford made contact with an unidentified person who Officer Bradford believed
               was the individual who called the police. (R.R. at 7)

       Q       And did you make contact with anyone?
       A       Yes, the -- I believe it was the person who called the police.

       The person he spoke to is identified only by gender–“he.” That person was at a bar after

midnight, and we have essentially no information about him. No physical description was given.

Why did Officer Bradford believe that this person was the one who called the police? Was he

intoxicated or sober? Did he provide any verification of his identity, such as a driver’s license or

other state-issued identification so that we know that he did not use a false name? Did his body

show any indication that he might have been involved in the fight?

       FF # 6
       6. The unidentified person that Officer Bradford spoke to was the owner of a damaged
              vehicle. (R.R. at 7)
       FF # 7
       7. Officer Bradford’s testimony did not reveal the cause of the damage to the vehicle nor
              where the damaged vehicle was located. (R.R. at 7)

       [A] . . . There was a vehicle that was damaged there. He was the owner of the vehicle that
                was damaged.
       Q        Okay. And did you see the damaged vehicle there?
       A        I did.

       Did Officer Bradford verify ownership? There is no description of the damaged car or the

asserted damage. Did the damage appear recent or was it showing rust? If he was calling the police

about car damage, why did he report a fight? A call reporting a fight is likely to attract a police

presence more quickly than a report of damage to a car in a bar parking lot because fights sometimes

turn into assaults or murders.
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       FF # 5
       5. Officer Bradford testified as having the name of the unidentified person written down,
              however, it was never offered as testimony. (R.R. at 7)

       Q       And did you speak to that person?
       A       Yes.
       Q       And do you know who that person was?
       A       I have it written down here.
       Q       So that person was identified to you?
       A       Right.

       But not identified to the trial court. He testified that he had the name of the person written

down “here,” yet we have no name in the record, no way to discover whether the person was a solid

citizen or a convicted thief and liar. And we have no testimony from this person about the events

at the bar before Officer Bradford arrived that could have provided facts that firmly support a finding

of reasonable suspicion.

       FF # 8
       8. The unidentified person pointed at a vehicle that was parked across the street and said,
              “there they are right there. There they are, there they are.” (R.R. at 7, 8)

       Q       And what did -- what did that person say to you?
       A       He pointed at a vehicle, which was parked across the street and pointed at it and said,
               “There they are right there. There they are, there they are.”

       FF # 9
       9. According to Officer Bradford, the vehicle that the unidentified person pointed to was
              parked across the street from the bar. (R.R. at 8)

       Q       When you say across the street, where was that vehicle parked?
       A       Directly across from the PR’s bar on the east side of the roadway, facing northbound.

       The car was parked across the street. How far away was “across the street”? What was the

lighting like? Were the faces of the people in the car visible and identifiable? What did the person

believe that “they” had done? How did he know that “they” were the right “they”? Did he know

appellee? If so, did he have any reason to falsely accuse?
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        FF # 10
        10. Officer Bradford then proceeded on foot across the street toward the vehicle.
               (R.R. at 8, 9)
        FF # 11
        11. The vehicle began to move, and Officer Bradford ordered the driver to stop the vehicle
               because he believed the occupants of the vehicle were involved in either an assault,
               criminal mischief, or both. (R.R. at 8, 9)

        Q       (BY [prosecutor]) Okay. So the witness said, “There they are,” and what did you do?
        A       I -- I was on foot at this point. I walked over to the vehicle as it started moving
                northbound. At that point I stopped it.
        Q       How did you stop it?
        A       Ordered the driver to stop the vehicle. I yelled at her.
        Q       Why did you do that?
        A       Because I believed that they -- at that point they were involved in an offense.
        Q       And which offense do you believe they were involved in?
        A       An assault, criminal mischief, or both.

        According to the testimony in the record, at the time Officer Bradford stopped appellee’s car,

no one at the scene had alleged that “they” had any involvement in the reported, but unverified, fight

or in causing damage to a car. In the record, there is not even verification that there had, in fact, been

a fight–no injuries were shown to Officer Bradford–and no other witnesses, such as bouncers, were

identified or questioned. A bare statement that “there they are” does not allege wrongdoing of any

kind.

        FF # 12
        12. Prior to making the stop Officer Bradford did not know how many people there might
               be in the vehicle nor how many people in the vehicle might have been involved in an
               assault or criminal mischief. (R.R. at 9)

        Q       Were there passengers in that car, too?
        A       There was. There was one.
        Q       Before you made the stop did you know how many passengers there might be?
        A       No.
        Q       Did you know how many people in that car might have been involved in the assault --
        A       No, I didn’t.
        Q       -- or the criminal mischief?
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       There was no evidence in the record that there had actually been an assault or a criminal

mischief, only hearsay statements from an unidentified person who the officer believed, but

apparently did not know, had made the call to police about a fight and who had apparently alleged

recent damage to a car.

       FF # 13
       13. Officer Bradford made contact with the driver, Ms. Kerwick. (R.R. at 9)

       [Q]     What did you do after you stopped and made contact with the Defendant?
       A       I spoke with the driver.
       Q       And what did you notice, anything about the driver?

       FF # 14
       14. Officer Bradford smelled a strong odor of alcohol coming from inside the car.
              (R.R. at l0)
       FF # 15
       15. Officer Bradford observed the driver’s bloodshot and watery eyes. (R.R. at 10)

       A       Well, I could smell a very strong odor of alcohol coming from inside the car. As far
               as the driver goes, bloodshot, watery eyes and just the odor of alcohol was pretty
               strong.

       The officer’s observations gave him probable cause as to driving while intoxicated, but the

issue here is not probable cause as to driving while intoxicated, but reasonable suspicion to stop

appellee as she began to leave the bar area. Based on the record, we cannot even deduce that she had

been in the bar, only that she was in the area.

       Immediately after the response noted in FF #15, the hearing concluded.

               MR. LUSTER: Pass the witness.
               MR. SHAW: No questions.
               MR. LUSTER: State rests.
               MR. SHAW: We rest.

       As the majority notes, whether the facts known to the officer at the time of detention amount

to reasonable suspicion is a mixed question of law and fact and, if the mixed question does not
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depend on an evaluation of credibility, it is viewed de novo by an appellate court. Clearly, the trial

court’s findings of fact are supported by the record. Equally clearly, the trial court credited Officer

Bradford’s testimony. Both the trial court and the court of appeals ruled that the testimony presented

to the trial court at the suppression hearing did not provide sufficient evidence to support a finding

of reasonable suspicion.

       As the trial court set out in its conclusions of law,

               To justify an investigative detention, the officer must have specific articulable
       facts, which, premised upon his experience and personal knowledge, when coupled
       with the logical inferences from those facts would warrant the intrusion on the
       detainee. These facts must amount to more than a mere hunch or suspicion. The
       articulable facts used by the officer must create some reasonable suspicion that some
       activity out of the ordinary is occurring or has occurred, some suggestion to connect
       the detainee with the unusual activity, and some indication the unusual activity is
       related to crime.
               The only information that Officer Bradford had to rely upon before making
       the stop was the dispatch, which stated that there was a fight among several people
       outside the bar and the vague statement “there they are” made by an unidentified
       person outside the bar. The vague statement “there they are” made by an unidentified
       person did not provide Officer Bradford with any specific articulable facts to form
       reasonable suspicion that some activity out of the ordinary was occurring, or had
       occurred, or that the detainee had a connection with the unusual activity. “There they
       are” does not identify who “they” are, nor what crime, if any, “they” had committed.
               Prior to making the stop, Officer Bradford did not know what offense had
       been committed, nor did Officer Bradford know who, if any, among the vehicle
       occupants were involved in an offense.
               Based on the evidence and the credibility of the witness, the court finds that
       Officer Bradford improperly stopped the vehicle because he lacked sufficient
       articulable facts to justify reasonable suspicion. (Citations omitted.)

       The court of appeals agreed. After raising many of the questions I have raised, the court of

appeals wrote,

              In short, the record before us simply contains no facts to enable either the trial
       court or this court to objectively evaluate either Officer Bradford’s belief that the
       person who said, “There they are right there. There they are, there they are,” was the
       person who had called the police or his belief that Appellee was “involved in an
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        offense . . . [–a]n assault, criminal mischief, or both.” No facts exist in the record to
        enable the trial court or this court to assess whether either of these beliefs by Officer
        Bradford were objectively reasonable. Without specific, articulable facts, a court has
        no means of assessing whether an officer’s opinion is objectively reasonable.
        Without specific, articulable facts, a detention cannot be subjected to the more
        detached, neutral scrutiny of a judge who must evaluate the reasonableness of a
        particular seizure in light of the particular circumstances. And when such a stop is
        not based on objective criteria, the risk of arbitrary and abusive police practices
        exceeds tolerable limits. Allowing a police officer’s opinion to suffice in specific
        facts’ stead eviscerates Terry’s reasonable suspicion protection.

                                                  ...

        Deferring as we must to the historical facts found by the trial court and mixed
        questions of law and fact that rely upon the credibility of Officer Bradford, and
        applying a de novo standard of review to the pure questions of law presented and to
        the mixed questions not depending on Officer Bradford’s credibility, we cannot hold
        that the trial court acted outside the zone of reasonable disagreement in granting
        Appellee’s motion to suppress. The State failed to meet its burden at the suppression
        hearing to adduce facts proving under an objective standard, disregarding any
        subjective intent of Officer Bradford, that Officer Bradford’s suspicion or belief that
        Appellee was violating the law was reasonable. Consequently, the trial court’s
        suppression ruling comports with the requisites of Terry v. Ohio, the Fourth
        Amendment, and article I, section 9 of the Texas constitution.

State v. Kerwick, 353 S.W.3d 911, 917, 918 (Tex. App.–Fort Worth 2011). (Emphasis in original,
citations omitted.)

        Both the trial court and the appellate court applied the correct standards of review and proper

analysis, and based on the skimpy record that was before them and is now before us, correctly

determined that the record is unable to support a finding of reasonable suspicion. Even if one

believes, as the trial court did and as I do, that Officer Bradford testified truthfully, the state did not

carry its burden of justifying a detention and warrantless arrest. Because it did not, I would affirm

the suppression ruling of the trial court and the judgment of the court of appeals.

        I respectfully dissent.
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Filed: February 27, 2013
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