Opinion issued September 29, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00455-CR
                          ———————————
                   DARRYL DWAYNE EVANS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 405th District Court
                         Galveston County, Texas
                      Trial Court Case No. 14CR1000


                      MEMORANDUM OPINION

      A jury convicted appellant, Darryl Dwayne Evans, of possession of a

controlled substance, namely, methamphetamine in an amount of four grams or more
but less than 200 grams.1 Appellant pleaded true to two enhancement allegations,2

and the jury assessed his punishment at twenty-six years’ confinement in the Texas

Department of Criminal Justice, Institutional Division.      In one point of error,

appellant complains that the trial court erred in denying his motion to suppress

evidence. We reverse and remand.

                                   Background

      At the pretrial suppression hearing, Officer Martinez of the Galveston Police

Department testified that, while on patrol at 1 a.m. on March 30, 2014, he observed

a car parked in the driveway of T&T Marine. As Officer Martinez “was coming

down Avenue G about two blocks prior, [he] saw [appellant] outside of the vehicle,

then . . . walking towards the passenger side, then return back towards the driver’s

side.” Officer Martinez testified that, given the previous five alarm calls to the

business, “there would be reasonable suspicion to wonder why [appellant] was on

the property at 1:00 o’clock in the morning when the business was already closed.”

      Officer Martinez stated that as appellant walked around the car, “he looked at

me and noticed me coming . . . then rapidly went back to the driver’s seat and got in

the car.” After Officer Martinez passed, appellant turned on his lights and pulled

out of the driveway. Officer Martinez then made a U-turn and, after activating his


1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2009).
2
      Appellant was previously convicted of the felony offense of possession of a
      controlled substance in 2008 and 1999.

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emergency lights, drove up behind appellant, who immediately pulled over. The

dash cam video from the officer’s car was admitted into evidence at the suppression

hearing.

      When Officer Martinez asked appellant why he was parked in the driveway,

appellant told him that he had dropped his cell phone. Officer Martinez then detected

a strong smell of marijuana coming from appellant’s vehicle. After asking appellant

to leave his vehicle, Officer Martinez performed a pat down search of appellant. He

then searched the vehicle and discovered what appeared to be crystal

methamphetamine in a plastic bag and a crack cocaine rock on the driver’s seat.

Officer Martinez arrested appellant at the scene. A backpack containing crystal

meth, an electronic scale, and small plastic bags was later found in the trunk of

appellant’s vehicle.

      Officer Martinez testified that there had been five 911 alarm calls to T & T

Marine in the previous two weeks but he did not believe that any of those 911 calls

resulted in burglary or other criminal activity. On cross-examination, Officer

Martinez testified that he did not see appellant walk towards the business, away from

the business, or leave the vicinity of the vehicle. He further testified that he was not

on patrol in the area because of a prior history of burglaries, nor was this a high-crime

area. According to Officer Martinez, he did not observe appellant commit any traffic

violations or engage in any criminal activity prior to the stop.



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      After appellant’s pretrial suppression motion was denied, the jury convicted

him of possession of a controlled substance and, with two enhancements, assessed

his punishment at twenty-six years’ confinement.

                                     Discussion

A.    Standard of Review

      We apply a bifurcated standard of review: (1) giving almost total deference to

a trial court’s determination of historical facts and application of law to fact

questions that turn on credibility and demeanor, and (2) reviewing de novo

application of law to fact questions that do not turn on credibility and demeanor.

Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The reviewing court

views the evidence in the light most favorable to the trial court’s ruling. Gutierrez

v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). At the suppression hearing,

the trial judge is the sole trier of fact and exclusive judge of the credibility of the

witnesses and the weight to be given to their testimony. St. George v. State, 237

S.W.3d 720, 725 (Tex. Crim. App. 2007).

B.    Applicable Law

      An investigative detention requires a police officer to have reasonable

suspicion of criminal activity. See Matthews v. State, 431 S.W.3d 596, 602–03 (Tex.

Crim. App. 2014). A determination of reasonable suspicion requires a review of the

totality of the circumstances, and reasonable suspicion may exist even if those



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circumstances in isolation may be just as consistent with innocent activity as with

criminal activity. York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011).

      Reasonable suspicion is present if the officer has specific, articulable facts

that, when combined with rational inferences from those facts, would lead the officer

to reasonably conclude that a person actually is, has been, or soon will be engaged

in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

These facts must show unusual activity, some evidence that connects the detainee to

the unusual activity, and some indication that the unusual activity is related to crime.

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). “Although an

officer’s reliance on a mere ‘hunch’ is insufficient to justify a[n] [investigatory] stop,

the likelihood of criminal activity need not rise to the level required for probable

cause.” United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751 (2002)

(citation omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,

1585 (1989)). The test for reasonable suspicion is an objective one that focuses

solely on whether an objective basis exists for the detention and disregards the

officer’s subjective intent. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883

(1968).

      The State bears the burden to show that an officer had at least a reasonable

suspicion the defendant either had committed an offense, or was about to do so,




                                            5
before they made the warrantless stop. Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex. Crim. App. 2011) (citing Sokolow, 490 U.S. at 7, 109 S. Ct. at 1585).

C.    Analysis

      We begin by determining whether the trial court’s implicit findings, which led

to the denial of the motion to suppress, are supported by the record. See State v.

Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013). Officer Martinez performed an

investigatory stop based on the following articulable facts: (1) there had been five

911 alarm calls to the specific address; (2) appellant was parked in the business’s

driveway at 1 a.m.; (3) the business was closed; (4) upon seeing Officer Martinez’s

vehicle driving down the street, appellant rapidly walked from his passenger side

door to his driver’s side door and left the parking lot.

      In Gamble v. State, a police officer performed an investigatory stop based on

the following facts: (1) it was 3:00 a.m.; (2) the defendant was either standing in the

street near, or walking in the street toward, a residence to which the officers had

been frequently called in the past year, but at which they had never made an arrest

for illicit activity; (3) the defendant watched the marked police car and walked away

from it when it turned around; and (4) the area had a history of illicit activity. 8

S.W.3d 452, 453–54 (Tex. App.—Houston [1st Dist.] 1999, no pet.). This Court

held that the trial court had erred in denying the defendant’s motion to suppress




                                           6
because there was insufficient evidence to support a reasonable suspicion of criminal

activity. See id.

      There are marked similarities between this case and Gamble. First, Officer

Martinez testified that there were five 911 calls to the business over the past two

weeks, similar to the calls to police regarding the residence in Gamble, and in both

cases, no arrests resulted. Id. Second, the stop in this case occurred at 1:00 a.m.,

and the defendant in Gamble was stopped at 3:00 a.m. Id. Third, Officer Martinez

testified that appellant quickly left upon seeing him, and in Gamble, the defendant

saw the marked police car and walked away from it when it turned around. Id.3

Notably, unlike Gamble, there is no evidence that the location in this case was

considered a “high-crime” area.4

      In Klare v. State, the Fourteenth Court of Appeals determined that the officer

lacked reasonable suspicion to stop the truck the defendant was driving based on the

following articulable facts: (1) it was 2:30 a.m.; (2) while driving on a highway, the

officer saw a truck parked behind a shopping center; (3) the businesses in the


3
      The Court of Criminal Appeals has held that persons in an automobile are subject
      to temporary investigative detentions in the same manner as pedestrians. See
      Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).
4
      A “high-crime” area, although not dispositive of reasonable suspicion, is a factor to
      be considered when analyzing the totality of the circumstances. See Illinois v.
      Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (noting that, while presence
      in high-crime area alone is not enough to support reasonable suspicion, fact that
      incident occurs in high-crime area is relevant factor to be considered in reviewing
      totality of circumstances).

                                            7
shopping center were closed; (4) there had been burglaries at the shopping center in

the past, though the police officer did not say how recent or how many; (5) the officer

turned into the parking lot shortly afterwards and discovered that the truck was gone;

(6) the officer then turned onto an adjoining road and within fifteen to twenty

seconds came upon a truck that he believed to be the same as the one at the shopping

center; and (7) the officer wanted to identify the truck. 76 S.W.3d 68, 71 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d).

      There are several similarities between this case and Klare. In Klare, the

officer testified that the above-cited reasons “raised [his] curiosity as far as suspicion

goes,” which the court described as an “inarticulate hunch.” Id. at 75 (quoting Terry,

392 U.S. at 22, 88 S. Ct. at 1880). Similarly, Officer Martinez testified that when

he saw appellant’s vehicle parked in front of the business, he was “[j]ust wondering

what the car was doing there at 1:00 o’clock in the morning when the business was

already closed.” Further, the stops in both cases occurred late at night, and the

vehicles were parked near closed businesses. We also note that the defendant in

Klare was parked behind a business which had been previously burglarized, whereas

here, there were no known burglaries, only alarm calls.

      In Turner v. State, the Dallas Court of Appeals found circumstances similar

to those present in this case did not create a reasonable suspicion warranting an

investigatory stop. See No. 05-10-01225-CR, 2011 WL 4953438, at *1–2 (Tex.



                                            8
App.—Dallas Oct. 18, 2011, no pet.) (mem. op., not designated for publication).

The police officer in Turner cited the following facts justifying the stop: (1) the stop

took place at approximately 1 a.m.; (2) the defendant’s car’s brake lights and

headlights came on when the officer turned down a street in a neighborhood; (3) the

defendant then made an immediate left turn; (4) the license plate came back

registered to a person residing in another city; and (5) four people occupied the

vehicle. Id.

      Finding the facts insufficient to support reasonable suspicion, the Turner court

noted that “there is a considerable difference between an officer stopping a vehicle

seen parked in a public parking lot . . . and an officer stopping someone seen walking

from behind private property well after the business was closed.” Id. at *3 (quoting

Tanner v. State, 228 S.W.3d 852, n.5 (Tex. App.—Austin 2007, no pet.) (citations

omitted)).5 Here, the dash cam video shows that appellant was parked in the well-

lit driveway of T&T Marine, and Officer Martinez testified he did not see appellant

leave the vicinity of his vehicle before he turned on his headlights and began to drive

away. The Turner court also noted that the police officer did not provide any

evidence that appellant was fleeing the scene. See Turner, 2011 WL 4953438, at *4



5
      In Turner v State, the defendant was parked on a neighborhood street, which the
      court found “more akin to being parked in a public parking lot.” 05-10-01225-CR,
      2011 WL 4953438, at *3 (Tex. App.—Dallas Oct. 18, 2011, no pet.) (mem. op., not
      designated for publication).

                                           9
(stating that officer “did not testify [the defendant] spun out his tires in an effort to

leave or that he sped away”). Similarly, Officer Martinez did not testify that

appellant quickly drove away; rather, he stated that appellant “rapidly went back to

the driver’s seat, got in the car. And as I passed him, his lights came on; and he

pulled out of the driveway.”

      Finally, in Jones v. State, this Court held that the trial court could have

reasonably concluded that the officer had reasonable suspicion to stop the defendant

based on (1) the lateness of the hour; (2) the vehicle was parked outside a closed

business; (3) the high incidence of crime in the vicinity; and (4) the defendant’s

attempt to flee as the police officer parked his car nearby and approached the car on

foot. See No. 01-07-00240-CR, 2008 WL 746527, at *3 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (mem. op., not designated for publication). The Court stated

that although flight alone may not justify a stop, it does constitute a valid factor in

determining whether an officer had reasonable suspicion to detain an individual. See

id. at *3. Here, there is no evidence that appellant attempted to flee as did the

defendant in Jones, nor was he stopped in a high-crime area.

      Based on our review of the record and relevant case law, we cannot conclude

that Officer Martinez had reasonable suspicion, based on the totality of the

circumstances, to believe that appellant had engaged, or was about to engage, in




                                           10
criminal activity. Therefore, we hold that the trial court erred in denying appellant’s

motion to suppress. We sustain appellant’s point of error.

                                     Conclusion

      We reverse the judgment of the trial court and remand this case for

proceedings consistent with this opinion.




                                                     Russell Lloyd
                                                     Justice


Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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