                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00043-CR



          THE STATE OF TEXAS, Appellant

                           V.

             TERRANCE SMITH, Appellee



        On Appeal from the County Court at Law
                Fannin County, Texas
                Trial Court No. 49174




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                                     OPINION
            Terrance Smith knocked on the door of a residence, was refused entry, and then drove

away. After the encounter was reported to the Bonham Police Department (BPD), Smith was

pulled over and subsequently arrested for driving while intoxicated (DWI). Smith filed a motion

to suppress all evidence obtained after the initial stop on the ground that the arresting officer could

not reasonably conclude that he was, had been, or would be engaged in criminal activity. The trial

court agreed. Now, the State of Texas appeals the trial court’s order granting Smith’s suppression

motion. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West 2018); State v. Medrano, 67

S.W.3d 892, 894 (Tex. Crim. App. 2002). We affirm.

I.          Factual and Procedural Background

            At the suppression hearing, the State introduced the testimony of Joe Gentry, a patrol

sergeant with the BPD who had reviewed the arresting officer’s police report.1 Gentry testified

that, while he was on patrol on the evening of the incident, he received a notice from dispatch at

8:18 p.m. about “[a] subject beating on the door, banging on the door, and the woman refusing to

let him in.” The trial court heard that Gentry did not know the name of the woman who contacted

9-1-1 dispatchers or whether the “banging” at the door was loud. The woman, who lived at 112

North Main Street, reported that the person banging on the door was Smith and that Smith had left

her residence in “[a] Mercedes pickup truck.” She provided no description of Smith.

            Gentry testified that the arresting officer stopped a silver Mercedes sports-utility vehicle

(SUV) “[s]everal blocks from the residence” after discovering that the vehicle’s license plate was


1
    The arresting officer did not testify at the suppression hearing.

                                                               2
registered to Smith. According to Gentry, Officer Richard Lundy, the arresting officer, had

smelled alcohol during the stop and had seen open containers in the SUV. Gentry testified that

Smith’s blood alcohol level was in excess of the legal limit.

         Bill Abbott, a narcotics investigator, provided backup to Lundy and testified that Smith

smelled of alcohol. Abbott testified that he heard the dispatch and that the woman who called 9-

1-1 had identified herself as Shamya Barnett. Abbott admitted that he recalled nothing to indicate

that Smith was a threat to Barnett. Both Gentry and Lundy stated that they did not know whether

Barnett was reliable. Aside from Gentry and Abbott’s testimony, no other evidence was presented.

         In granting Smith’s suppression motion, the trial court concluded (1) that “no crime was

alleged to have been committed by the Defendant when he was stopped and that no crime had been

committed prior to his stop,” (2) that “the information the officers had at the time of the stop could

not objectively and reasonably lead [them] to believe a crime had occurred, was occurring, or

would occur,” and (3) that “the 911 caller did not establish a link between alleged crime and

Defendant because the caller did not provide a physical description of the Defendant.” 2 The State

appeals.

II.      Standard of Review

         “In a hearing on a motion to suppress evidence, a defendant bears the initial burden of

proof to demonstrate that the search and seizure occurred without a warrant.” Hitchcock v. State,

118 S.W.3d 844, 848 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Bishop v. State, 85 S.W.3d


2
 In its findings of fact, the trial court determined that Barnett incorrectly described the vehicle’s make and did not
provide a physical description of Smith.

                                                          3
819, 821 (Tex. Crim. App. 2002)). Once the defendant demonstrates that a warrantless search

occurred, the burden shifts to the State to prove that a warrant existed or that an exception, under

either the Fourth Amendment to the United States Constitution or Article I, Section 9, of the Texas

Constitution, justified the warrantless search given the totality of the circumstances. State v.

Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002); Bishop, 85 S.W.3d at 822; Hitchcock,

118 S.W.3d at 848. If clear and convincing proof satisfying the State’s burden is not offered before

the trial court, then the illegally obtained evidence may not be admitted at trial. See State v. Ibarra,

953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (Mansfield, J., concurring); Hitchcock, 118 S.W.3d

at 848. In the present case, the parties agree that the search in question was executed without a

warrant. Consequently, the State was required to prove the existence of a valid exception to the

Fourth Amendment.

       “The job of an appellate court in cases such as the one before us is to review the decision

of the lower court for an abuse of discretion.” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.

App. 2006). “We view the record in the light most favorable to the trial court’s conclusion and

reverse the judgment only if it is outside the zone of reasonable disagreement.” Id. “We will

sustain the lower court’s ruling if it is reasonably supported by the record and is correct on any

theory of law applicable to the case.” Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990)). “We give almost total deference to a trial court’s express or implied determination

of historical facts and review de novo the court’s application of the law of search and seizure to

those facts.” Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).



                                                   4
III.   Analysis

       “A detention is either good or bad at the moment it starts.” State v. Duran, 396 S.W.3d

563, 569–70 (Tex. Crim. App. 2013). “A detention, as opposed to an arrest, may be justified on

less than probable cause if a person is reasonably suspected of criminal activity based on specific,

articulable facts.” Peucker v. State, 489 S.W.3d 592, 600 (Tex. App.—Texarkana 2016, pet. ref’d)

(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). “In Terry, the Court adopted a two-part examination

to determine the reasonableness of an investigative detention.” Id. (citing Terry, 392 U.S. at 22).

“The first part of the analysis is to determine whether the officer’s action at its inception was

reasonable.” Id. (citing Terry, 392 U.S. at 16–17). Here, we are tasked with determining whether

the trial court’s ruling on this issue constituted an abuse of discretion.

       An “officer must have specific, articulable facts that, when combined with rational

inferences therefrom, lead him to reasonably conclude that a particular person actually is, has been,

or soon will be, engaged in criminal activity.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim.

App. 2013) (citing Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007)). “This standard

is objective, thus there need be only an objective basis for the stop; the subjective intent of the

officer is irrelevant.” Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

“The detaining officer need not personally be aware of every fact that objectively supports a

reasonable suspicion to detain; the cumulative information known to the cooperating officers at

the time of the stop is to be considered in making the reasonable-suspicion determination.” Id. “A

911 police dispatcher is ordinarily regarded as such a cooperating officer for purposes of making

this determination.” Id.

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         “[A]lthough the information provided need not lead to the conclusion that an identifiable

penal-code offense has occurred, the information must still be sufficiently detailed and reliable to

support the reasonable suspicion that criminal activity is about to occur.” Martinez v. State, 348

S.W.3d 919, 926 (Tex. Crim. App. 2011). “[A]ctions in a series may each seem innocent enough

in isolation. If, however, when examined in the context of the totality of the circumstances, they

reasonably suggest recent or imminent criminal conduct, an investigative detention is justified.”

Arguellez, 409 S.W.3d at 663 (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.

App. 2011)). “The relevant inquiry is not whether particular conduct is innocent or criminal, but

the degree of suspicion that attaches to particular non-criminal acts.” Arguellez, 409 S.W.3d at 663

(quoting Derichsweiler, 348 S.W.3d at 914). At a minimum, however, “[t]he facts must show that

an unusual activity occurred” and that “the unusual activity is related to a crime.” Martinez, 348

S.W.3d at 925.

         “The reasonable suspicion determination is made by considering the totality of the

circumstances.” Arguellez, 409 S.W.3d at 663 (quoting Garcia, 43 S.W.3d at 530). Here, the facts

before the trial court included that (1) Terrance Smith “banged” on the door of a residence occupied

by Shamya Barnett at 8:18 p.m., (2) Barnett denied Smith entry, (3) Smith did not threaten Barnett,

(4) Smith left the residence in a silver Mercedes, and (5) Barnett called 9-1-1. There was no

evidence of the duration of the banging, whether it was loud, or whether officers believed the

activity to be suspicious for any other reason. There was also no evidence of how Barnett knew

Smith.



                                                 6
       At the suppression hearing, no traffic violation was reported, and the only articulated

reason for stopping the SUV was Barnett’s report that the person banging on her door left in a

silver Mercedes pickup truck. Neither Gentry nor Abbott attempted to explain or suggest that it

was reasonable for the arresting officer to believe, prior to the stop, that any criminal activity was

afoot. Rather, the evidence indicated that they merely followed the directive to stop a silver

Mercedes. From here, “we review de novo whether th[ese] facts are sufficient to give rise to

reasonable suspicion.” Id. “The ultimate question is whether the officer was in possession of

specific, articulable facts that were sufficient to provide a basis for a finding of reasonable

suspicion to stop appellant’s vehicle.” Id.

       We conclude that there was an absence of clear and convincing proof satisfying the State’s

burden to justify its warrantless search. In the absence of additional evidence, we find that the trial

court did not abuse its discretion in finding that the officers failed to develop reasonable suspicion

to believe that Smith had engaged in criminal activity or was about to do so. Given the absence

of evidence showing (1) the nature of Barnett and Smith’s relationship, if any, (2) that Smith had

threatened Barnett in any manner, or (3) that Smith would return to Barnett’s home after he left,

there “was no indication of crime being afoot.” See Arguellez, 409 S.W.3d at 664. Because we

find no abuse of discretion in the trial court’s decision to grant Smith’s suppression motion, we

overrule the State’s point of error. See Dixon, 206 S.W.3d at 590.




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IV.   Conclusion

      We affirm the trial court’s judgment.



                                              Ralph K. Burgess
                                              Justice

Date Submitted:      July 23, 2018
Date Decided:        July 24, 2018

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