Dissenting Opinion issued November 4, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00553-CR
                             ———————————
                   DAVID LEROY TAFLINGER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 14
                           Harris County, Texas
                       Trial Court Case No. 1791890


                           DISSENTING OPINION

      As there was no independent corroboration of the gas station cashier’s

unsubstantiated claim that Taflinger was “drunk” and the officer’s stop was based

upon an imagined traffic violation, I dissent.
      Because the only question for our review is the application of the law to the

undisputed facts, this court’s review of the trial court’s conclusions of law is de

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

      The majority seeks to re-cast this groundless stop by reference to cases

which are all critically distinguishable from the very simple and basic facts as they

have arrived in our Court:

         1. A gas station cashier who Officer Troost knew because he frequented
            the station, called Officer Troost’s cell phone and reported that
            Taflinger had just left the store drunk, was driving off the station’s
            premises in a red truck, and that Officer Troost should stop Taflinger
            and arrest him.
         2. Officer Troost saw the red truck turn out onto a public roadway across
            two northbound lanes and turn left without signaling.
         3. Under the mistaken belief that Taflinger had committed a traffic
            violation by not signaling, Officer Troost stopped Taflinger and
            subsequently arrested him for DWI.
Officer Troost observed no actual traffic violations; no weaving; no driving

exceptionally slow; nor incidents of other cars being nearly run off the road due to

Taflinger’s driving.

      As in Ford, the record provides no facts that would allow a reviewing court

to determine whether the officer’s opinions were objectively reasonable. 158

S.W.3d at 493. The cashier merely proffered her opinion that Taflinger was

“drunk,” and that Officer Troost should stop Taflinger and arrest him. An opinion

with no articulated factual basis cannot provide the basis for an objectively


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reasonable suspicion sufficient to detain a driver. Id. (stating “articulable facts are

required to provide a basis for finding reasonable suspicion”).

      The facts of this case are not the facts of State v. Stolte, 991 S.W.2d 336

(Tex. App.—Fort Worth 1999, no pet.) in which the caller, a former law

enforcement employee, described Stolte’s dangerous driving to the police

dispatcher in real time and in great detail (e.g., the number of times Stolte’s vehicle

weaved from its lane, the fact that Stolte almost ran another car off the road), thus

providing a factual basis for the subsequent stop, not a mere unsupported

conclusory statement. Id. at 340.

      Nor do the facts here comport with Nacu v State, 373 S.W.3d 691 (Tex.

App.—San Antonio 2012, no pet.)—the case cited by the majority in which the

citizen who alerted the officer about an intoxicated driver was a restaurant manager

who had observed Nacu disturbing other customers, using profanity, throwing

napkins and sugar packets, and asking other customers to buy her alcohol after the

restaurant staff refused to serve her. Id. at 692–93. When Nacu left and attempted

to drive away, the manager ran outside with a cell phone in order record Nacu’s

license plate information and give it to police. Id. at 693. Seeing a police unit in

the adjacent lot, the manager reported Nacu to the officer, who immediately

thereafter personally witnessed Nacu drive in an unsafe manner between two poles

in her attempt to exit the restaurant’s lot. Id. No such erratic or unsafe driving was

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in play in the present case. Indeed, here, there is no “there” there—there is nothing

apart from an unsubstantiated conclusory accusation and a legally executed exit

and turn from a private driveway onto a public roadway.

      The majority characterizes Taflinger’s non-signaled exit from the parking lot

as a “small additional measure of corroboration” of Taflinger’s intoxication. What

corroboration? Since Officer Troost’s testimony never noted anything except an

imagined traffic violation, we can assume that what the officer witnessed was

nothing more than a perfectly executed exit and turn onto a public roadway. How

does that in any way serve to corroborate anything?

      The reasonableness of a given detention will turn on the totality of the

circumstances in that particular case. See Woods v. State, 956 S.W.2d 33, 38 (Tex.

Crim. App. 1997). The totality of the circumstances of this case is so lacking in a

basis for objectionably reasonable suspicion, it cannot stand.

      The majority’s recurring recitation as to the credibility and weight to be

accorded citizens’ tips, while valid in a general sense, is nothing more than an

obfuscation (“look over there”), because Taflinger never contests the cashier’s

reliability or credibility. Rather, the actual issue here is the absence of articulable

facts that could serve as the basis for an objectionably reasonable suspicion.

      When the cashier called Officer Troost’s cell phone, she alerted him that

Taflinger was “drunk” and leaving the premises driving a red truck. Officer

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Troost, who was on the gas station’s premises, spotted the red truck (the only truck

on the premises) pulling out from the station and turning onto a public roadway.

Officer Troost stopped Taflinger’s vehicle for failing to sign a turn that the law

imposes no duty to signal. Apart from having received a call advising him of the

cashier’s conclusion that Taflinger was “drunk,” and observing something the

officer incorrectly construed to be a law violation sufficient to stop the truck,

Officer Troost did not follow the truck to observe it for actual violations or other

“specific and articulable facts” from which he may have reasonably surmised that

Tafligner was “associated with a crime.”

      Because neither Officer Troost nor the cashier articulated a factual basis

which would allow a reviewing court to determine whether Officer Troost had an

objectively reasonable suspicion sufficient to detain Taflinger, I would reverse.

See Ford, 158 S.W.3d at 493–94 (holding trial court erred in denying defendant’s

motion to suppress due to lack of articulable facts providing basis for finding

reasonable suspicion).




                                               Jim Sharp
                                               Justice

Panel consists of Justices Keyes, Sharp and Huddle.
Justice Sharp, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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