Opinion filed December 9, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00115-CR
                                        __________

                       DALE KITTRELL JUSTICE, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 350th District Court

                                     Taylor County, Texas

                                 Trial Court Cause No. 8856D


                           MEMORANDUM OPINION
       The trial court convicted Dale Kittrell Justice, upon his plea of guilty, of felony driving
while intoxicated and assessed his punishment at confinement for five years and a $1,000 fine.
Pursuant to the plea bargain agreement, the trial court suspended the imposition of the
confinement portion of the sentence and placed appellant on community supervision for five
years. We affirm.
                                         Issue on Appeal
       In his sole issue on appeal, appellant contends that the trial court abused its discretion by
denying his motion to suppress. Appellant argues that Texas Department of Public Safety
Trooper Michael Shane Bearden stopped him based on an uncorroborated or insufficiently
corroborated tip.    Therefore, appellant contends that Trooper Bearden lacked reasonable
suspicion to stop and detain him.
                                        Standard of Review
       In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give
great deference to the trial court’s findings of historical facts as long as the record supports the
findings. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955
S.W.2d 85 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the
appellate court reviews evidence adduced at the suppression hearing in the light most favorable
to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We
also give deference to the trial court’s rulings on mixed questions of law and of fact when those
rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where
such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s
actions de novo. Guzman, 955 S.W.2d at 87. An appellate court must uphold the trial court’s
ruling if it is reasonably supported by the record and is correct under any applicable theory of
law. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800
S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
                                 Evidence at Suppression Hearing
       Trooper Bearden testified that he received a call on the CB radio from a truck driver that
there was a man in a red car who had put a beer to his lip when he passed the truck driver. The
truck driver identified himself as being in the red Peterbilt truck two or three cars behind
Trooper Bearden. Trooper Bearden stated that he looked in his rearview mirror and saw a red
station wagon right in front of a red Peterbilt truck. Trooper Bearden told the truck driver that he
saw both the truck driver and the red car. The truck driver told him again that the driver of the
red car ―turn[ed] a beer up to his lips‖ as he pulled next to the truck; the truck driver described it
as a bottle of beer. Trooper Bearden again confirmed that the caller was in the red Peterbilt truck
he could see on the highway. The truck driver informed Trooper Bearden that he was exiting the
interstate. Trooper Bearden testified that he believed the truck driver exited at mile marker 280.
       When Trooper Bearden reduced his speed, so did the driver of the red car.
Trooper Bearden testified that he then ―slowed down very slow‖ and that so did the driver of the
red car. The red car finally passed him, and Trooper Bearden eventually pulled the driver over.

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As the driver was pulling over, Trooper Bearden noticed him ―moving around a lot‖ and
―reaching around the vehicle.‖
       Appellant, the driver of the car, had bloodshot eyes. His speech was slurred, and there
was an odor of an alcoholic beverage coming from his breath. Appellant also had a confused
look on his face. When Trooper Bearden stated that he smelled alcohol on his breath, appellant
said that he had had some beers earlier that day but that there was no beer in his vehicle.
       Trooper Bearden informed appellant that the truck driver told the officer that he saw
appellant drinking beer. Trooper Bearden said, ―So if I check your vehicle, I wouldn’t find any
alcoholic beverage in the car?‖ Appellant answered, ―[N]o.‖
       Trooper Bearden found a soft-side cooler containing water bottles, vitamin water bottles,
and a full bottle of beer. Under the front passenger seat ―partially sticking out into view‖ was an
open bottle of beer. There was a small amount of beer remaining in the bottle.
       Trooper Bearden then began to investigate the situation as a possible DWI. Appellant
failed all three field sobriety tests and refused to take a breath test. Trooper Bearden placed
appellant under arrest for DWI.
                                  Trial Court’s Findings of Fact
       After the hearing on appellant’s motion to suppress, the trial court found that
Trooper Bearden received a call from the driver of a red Peterbilt truck and that the driver had
observed appellant drinking from a bottle of beer while driving a red station wagon. Both
vehicles were visible to Trooper Bearden, and he was able to confirm the location of both with
the truck driver. Trooper Bearden slowed down, and appellant passed him. Trooper Bearden did
not observe appellant commit any violation of the law prior to pulling appellant over. After the
vehicle stopped but before Trooper Bearden approached, Trooper Bearden observed appellant
reach around and move a lot. Trooper Bearden observed that appellant had bloodshot eyes and
spoke with a slight slur. Trooper Bearden also smelled the odor of alcohol coming from the car.
       The trial court concluded that Trooper Bearden visually corroborated the truck driver’s
location and description of his rig as well as appellant’s location and the description of his car.
Trooper Bearden did not visually corroborate the time of the alleged illegal activity or the
alleged illegal activity of possessing an open container of alcohol or consuming alcohol while
driving.    The truck driver was not ―anonymous‖ because he identified himself to
Trooper Bearden, and Trooper Bearden confirmed the truck driver’s location both during and

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shortly after he made his report.       The trial court also concluded that, based on visual
corroboration and the unusual driving action by appellant, Trooper Bearden had a reasonable
suspicion that appellant had been engaging in criminal activity.
                                              Analysis
       An officer may briefly detain an individual and investigate possible criminal activity
where the officer has specific and articulable facts that, when taken with rational inferences, give
rise to a reasonable suspicion that illegal activity has occurred or is occurring. Terry v. Ohio,
392 U.S. 1, 21 (1968); Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005); Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Carmouche, 10 S.W.3d at 328. The factual
basis for an officer’s stop of a vehicle may be provided by someone other than the officer, such
as a citizen who observed illegal activity. Adams v. Williams, 407 U.S. 143, 147 (1972);
Brother v. State, 166 S.W.3d 255, 258 (Tex. Crim. App. 2005).               To determine whether
reasonable suspicion exists, the appellate court evaluates the totality of the circumstances, giving
almost total deference to the trial court’s determination of historical facts. Ford, 158 S.W.3d at
493; Garcia, 43 S.W.3d at 530.
       The State relies on State v. Sailo, 910 S.W.2d 184 (Tex. App.—Fort Worth 1995, pet.
ref’d), to support its position that the truck driver was readily identifiable and readily available.
In Sailo, a citizen drove by the law enforcement officers and shouted excitedly across the road
that he had seen a possible drunk driver driving ―all over the road‖ and almost runing into a ditch
twice. 910 S.W.2d at 186. The citizen pulled over but then drove off before the officers could
get any identification from him. Id. at 187. The Sailo court held that the tip was sufficiently
reliable because the informant, although unknown, came forward in person in his vehicle as
opposed to making an anonymous phone call. Id. at 188.
       The record supports the trial court’s conclusion that Trooper Bearden had sufficient
reasonable suspicion to stop appellant and conduct an investigative detention. The truck driver
provided Trooper Bearden with a description of appellant’s vehicle and possible illegal activity
that the truck driver had seen. Trooper Bearden confirmed the location of both the truck driver
and appellant. Trooper Bearden then observed appellant begin to drive very slowly in an effort
to stay behind the trooper’s vehicle before finally passing the trooper.
       The cases cited by appellant are distinguishable.           Either the informant made an
anonymous phone call or there was no other evidence that could possibly give the law

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enforcement officers a reasonable suspicion of illegal activity. We agree with the Fort Worth
Court’s conclusion in Sailo that a driver in an identified vehicle could in certain circumstances
give a sufficient tip to support a valid detention – especially when, as under the facts of this case,
the law enforcement officer observes unusual driving behavior by the defendant.
       Appellant has not established that the trial court abused its discretion. The sole issue is
overruled.
                                               Holding
       The judgment of the trial court is affirmed.




                                                      TERRY McCALL
                                                      JUSTICE


December 9, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


Publish. Per motion granted 1-13-11.




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