                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00038-CR

ZACHARIAH FERRIS HOUGHTALING,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F50658


                          MEMORANDUM OPINION


      Zachariah Ferris Houghtaling was charged with the offense of possession of a

controlled substance, 1 to 4 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West

2017). He filed a motion to suppress the drug evidence which was denied. Houghtaling

then pled guilty and was sentenced to 25 years in prison. Because the trial court did not

err in denying Houghtaling’s motion to suppress, the trial court’s judgment is affirmed.

BACKGROUND

      An unidentified woman called 911 in Johnson County and reported that she was
at County Road 511 and County Road 616 in rural Johnson County and that there was a

white male in the roadway wearing a white plaid jacket waiving a gun around. She then

reported that another white male joined the male with the gun. After the call was

disconnected, the woman called back and reported that the men were walking toward

her. She said that because she had her children in the car, she was going to go the other

direction. Deputy Vance Johnson responded to the subsequent dispatch regarding the

incident and, being somewhat close to the caller’s location, came upon two white males—

one of which was wearing a white plaid jacket—as they were walking down County Road

511.

       After stopping his patrol unit and jumping out, Johnson pulled out his firearm and

ordered the men to raise their hands and get on the ground. After the two men complied,

Johnson asked Houghtaling, the man in the plaid jacket, about the gun. Houghtaling

replied that he did not have a gun but had a hatchet. Johnson removed the hatchet, threw

it to the side, and conducted a pat-down for more weapons. Finding no other weapons

on Houghtaling, Johnson had the two men get up out of the street and sit on the side of

the road where he began to pat-down the other man.      The other man stated that he had

a knife. As Johnson was looking for the knife, Houghtaling stood up and began pulling

on a plastic baggy that was sticking partially out of his pants pocket. Before Houghtaling

could do anything further, Johnson grabbed Houghtaling’s hand and asked what

Houghtaling was pulling out of his pocket. Johnson then pulled the baggy out of


Houghtaling v. State                                                                Page 2
Houghtaling’s pocket and asked Houghtaling what was in the baggy. Houghtaling

replied that it was his “dope.” Johnson then took Houghtaling into custody.

MOTION TO SUPPRESS

       Houghtaling’s three issues on appeal relate to the trial court’s denial of

Houghtaling’s motion to suppress the drug evidence seized. We review a motion to

suppress evidence under a bifurcated standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex.

Crim. App. 2013). When the trial judge makes explicit findings of fact, we afford those

findings almost total deference as long as the record supports them, regardless of whether

the motion to suppress was granted or denied. State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

review de novo, however, a trial judge's application of the law of search and seizure to

the facts. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013).

Anonymous Tip

       In his first issue, Houghtaling asserts that the anonymous 9-1-1 call did not give

Deputy Johnson reasonable suspicion to detain Houghtaling.

       Under the Fourth Amendment, a warrantless detention of a person that amounts

to less than a full-blown custodial arrest must be justified by a reasonable suspicion.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer has

reasonable suspicion to detain a person if he has specific, articulable facts that, combined

with rational inferences from those facts, would lead him reasonably to conclude that the


Houghtaling v. State                                                                  Page 3
person detained is, has been, or soon will be engaged in criminal activity. York v. State,

342 S.W.3d 528, 536 (Tex. Crim. App. 2011). This standard is an objective one that

disregards the subjective intent of the officer and, instead, looks at whether the basis for

detention was objectively justifiable. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App.

2013). While only some minimal level of justification for the stop is needed, the officer

must have more than an inarticulable hunch or mere good-faith suspicion that a crime is

in progress. Furr v. State, 499 S.W.3d 872, 886 (Tex. Crim. App. 2016). It also looks to the

totality of the circumstances which may all seem innocent enough in isolation, but if they

combine to reasonably suggest the imminence of criminal conduct, an investigative

detention is justified. Derichsweiler v. State, 348 S.W.3d at 914.

       An officer's suspicion may be based on information provided by an anonymous

tip, rather than the officer's own observations, if that tip exhibits "sufficient indicia of

reliability." See Alabama v. White, 496 U.S. 325, 327, 332, 110 S. Ct. 2412, 110 L. Ed. 2d 301

(1990). Although an anonymous tip alone will seldom provide the kind of reliability

necessary to support a determination of reasonable suspicion to justify an investigatory

stop, it may do so under appropriate circumstances. See Navarette v. California, ___ U.S.

___, 134 S. Ct. 1683, 1688, 188 L. Ed. 2d 680 (2014); Yoon Chung v. State, 475 S.W.3d 378,

383 (Tex. App.—Waco 2014, pet. ref’d).

       Houghtaling points to Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254

(2000), as support for his claim that Johnson did not have reasonable suspicion to detain


Houghtaling v. State                                                                    Page 4
Houghtaling. In J.L., the Supreme Court held that an anonymous tip that a person was

carrying a gun was, without more, insufficient to justify a police officer's stop and frisk

of that person. Id. at 274. The Court explained that reasonable suspicion required a tip

to demonstrate knowledge of concealed criminal activity, not just tend to identify a

certain individual. Id. at 272. The Court concluded that the tip, because it provided only

a description of a subject, lacked the indicia of reliability, such as predictive information

on which the police could test the informant's credibility, that is required to justify a stop

and frisk. Id. at 274.

       But this case is distinguishable from J.L. In this case, the caller used 9-1-1 as a

means to notify the authorities that Houghtaling had a gun. The use of the 9-1-1 system

is one of the relevant circumstances that, when taken together with other circumstances,

justifies an officer’s reliance on the information reported in the 9-1-1 call. Navarette v.

California, 572 U.S. 393, 134 S. Ct. 1683, 1690, 188 L. Ed. 2d 680 (2014). Also, unlike in J.L.,

the caller saw Houghtaling waiving a gun and walking toward her. She then decided to

go the other direction because she had her children in the vehicle with her. This sort of

eyewitness knowledge “lends significant support to the tip’s reliability.” Id. at 1689.

Further, when the call was made, the location given was County Roads 511 and 616.

Johnson was in the area and spotted Houghtaling only about a block away from the initial

call location. This suggests that the caller reported the incident as soon as it occurred and

weighs in favor of the tip’s reliability. See id. (A tip that is contemporaneous with the


Houghtaling v. State                                                                     Page 5
observation of criminal activity or made under the stress of excitement caused by a

startling event weighs in favor of the caller’s veracity.). The call did not simply tend to

identify a certain individual.

       Accordingly, under the totality of the circumstances, we find the indicia of

reliability of the anonymous call in this case sufficient to provide Deputy Johnson with

reasonable suspicion to detain Houghtaling. Houghtaling’s first issue is overruled.

Continued Detention

       In his second issue, Houghtaling contends his continued detention after the pat-

down was conducted was not justified. Houghtaling seems to argue that when no gun

was found in his possession, he should have been released.

       An investigative detention based on reasonable suspicion must be temporary and

last no longer than is necessary to effectuate the purpose of the detention. See Florida v.

Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). If an investigative stop

continues indefinitely, at some point it can no longer be justified as an investigative stop.

United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985). But

case law imposes no rigid time limitation, and common sense and ordinary human

experience must govern over rigid criteria. Id. Further, if the officer develops reasonable

suspicion during a valid detention that the detainee is engaged in criminal activity,

prolonged or continued detention is justified. See Haas v. State, 172 S.W.3d 42, 52 (Tex.

App.—Waco 2005, pet. ref’d).


Houghtaling v. State                                                                     Page 6
         The purpose of the detention was to investigate the 9-1-1 call.                    Although

Houghtaling was the person the caller saw waving the gun and advancing toward her

vehicle, she also saw another person with Houghtaling. It was not unreasonable for

Deputy Johnson to pat down Houghtaling’s companion in an attempt to locate the gun

after the pat down of Houghtaling was fruitless. Further, it does not appear in the record

that the detention continued for an excessive amount of time. Before Johnson was

finished with the companion’s pat-down, Houghtaling stood up and began pulling on

the plastic baggy in his pocket.            The entire encounter, from the initial stop to

Houghtaling’s arrest lasted approximately four minutes. Thus, based on the facts in this

record, Houghtaling’s detention lasted no longer than necessary and continued to be

justified. Houghtaling’s second issue is overruled.

Search

         In his third and final issue, Houghtaling contends Deputy Johnson was not

entitled to pull the plastic baggy out of Houghtaling’s pocket because the deputy did not

have a warrant, did not have consent, and did not meet any exceptions to the warrant

requirement. The State argues that Johnson had probable cause to arrest Houghtaling for

public intoxication, and thus, the removal of the plastic baggy from Houghtaling’s pocket

was a search incident to an arrest and an exception to the warrant requirement. 1




1
 The State does not contest Houghtaling’s claim in this issue that the deputy did not have a warrant and
did not obtain Houghtaling’s consent to remove the baggy.

Houghtaling v. State                                                                             Page 7
       Probable cause for an arrest exists when facts and circumstances within the

knowledge of the arresting officer, and of which he has reasonably trustworthy

information, would warrant a reasonably prudent person in believing that a particular

person has committed or is committing a crime. State v. Ballard, 987 S.W.2d 889, 892 (Tex.

Crim. App. 1999). Once an officer has probable cause to arrest, he may lawfully conduct

a search incident to that arrest. See State v. Sanchez, 538 S.W.3d 545, 550 (Tex. Crim. App.

2017). The fact that a search incident to an arrest precedes a formal custodial arrest by a

few moments is of no consequence. See id.; Williams v. State, 726 S.W.2d 99, 101 (Tex.

Crim. App. 1986). Further, it is of no consequence that the defendant is convicted of a

different offense than the offense for which the officer has probable cause to arrest prior

to a search. See Williams v. State, 726 S.W.2d 99, 100-101 (Tex. Crim. App. 1986) (search

after probable cause to arrest for parking violation valid; convicted of unlawfully

carrying a handgun).

       A person commits the offense of public intoxication if the person appears in a

public place while intoxicated to the degree that the person may endanger the person or

another. TEX. PENAL CODE ANN. § 49.02(a) (West 2011). A peace officer may arrest an

offender without a warrant for any offense committed in his presence or within his view.

TEX. CODE CRIM. PROC. art. 14.01(b) (West 2015).        Deputy Johnson testified at the

suppression hearing that when he approached Houghtaling, Houghtaling had rapid eye-

movement and speech, seemed as if he could not control his arms and waved his arms


Houghtaling v. State                                                                  Page 8
around, and looked paranoid. To Johnson, Houghtaling appeared to be under the

influence of something. Johnson further testified that he had previously investigated the

offense of public intoxication and after viewing Houghtaling’s actions, Johnson

determined he was investigating that offense and felt Houghtaling was a danger to

himself or others. Thus, based on his testimony, Johnson had probable cause to arrest

Houghtaling for public intoxication and the search conducted was justified as a search

incident to an arrest. See Williams v. State, 726 S.W.2d 99, 100-101 (Tex. Crim. App. 1986).

       Houghtaling’s third issue is overruled.

CONCLUSION

       Having overruled each issue on appeal, we affirm the trial court’s judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 15, 2018
Do not publish
[CRPM]




Houghtaling v. State                                                                  Page 9
