Affirmed and Memorandum Opinion filed September 22, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00560-CR

                RUSSELL SINGLETON LEONARD, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 12
                           Harris County, Texas
                       Trial Court Cause No. 1949831

                  MEMORANDUM                       OPINION


      Appellant Russell Singleton Leonard appeals his conviction for Class A
misdemeanor driving while intoxicated. In three issues, appellant argues (1) the
trial court erred in denying his motion to suppress evidence; (2) the trial court erred
in submitting an erroneous instruction to the jury; and (3) the evidence is
insufficient to support the conviction. We affirm.
                                   BACKGROUND

      Appellant’s sister called 911 and told the dispatcher that her brother was
“out wandering around drunk.” Appellant’s sister wanted to take appellant to the
emergency room, but did not believe the hospital would accept appellant if he was
“combative.” The dispatcher transferred appellant’s sister to medical dispatch.
When the medical dispatcher asked for the sister’s location, she said, “Oh no, he’s
gonna drive.” When appellant drove away, the sister identified herself as Patty and
gave the dispatcher her phone number. Patty told the dispatcher that she was trying
to prevent her brother from “driving intoxicated.” When appellant began to drive,
Patty gave the license plate number to the dispatcher. The medical dispatcher
transferred Patty back to the police dispatcher. When Patty was transferred back to
the police dispatcher, she was in her car following appellant. After again giving her
name and phone number to the police dispatcher, Patty reported that her brother
was driving intoxicated, and that she was in a separate car following him. The
police dispatcher transferred Patty to the officer who would respond to the call.
Patty identified the car as a white Challenger driving with the hazard lights on.

      Officer Araiza of the Houston Police Department testified that he responded
to a 911 call about an intoxicated driver. Araiza saw the Challenger and Patty’s car
following 20 to 25 feet behind. Patty pointed to appellant’s car, and said, “That’s
the vehicle. That’s the vehicle.” Araiza verified the car’s description and license
plate with the 911 dispatcher, and initiated a traffic stop. At the time Araiza
initiated the traffic stop he knew that the 911 caller was chasing appellant because
appellant had been drinking and was now driving.

      When Araiza approached appellant he began asking basic questions
attendant to a traffic stop. As appellant answered Araiza detected the odor of
alcohol on appellant’s breath. Araiza also noticed appellant’s eyes were extremely

                                          2
red and bloodshot. Appellant did not respond to Araiza’s questions in a normal
manner, and Araiza saw an opened 30-pack of beer in the front passenger seat of
appellant’s vehicle. One or two beers were missing from the package. Araiza also
saw an open beer in the car. At Araiza’s request, appellant stepped out of the car.
Appellant’s speech was slurred, and he was unable to stand without leaning on the
car. Appellant said he had consumed two beers. Araiza tried to conduct field
sobriety tests, but appellant was not responsive. Araiza contacted Sergeant Donato,
who was more experienced with intoxicated drivers. Donato instructed Araiza to
transport appellant to “Central Intox.”

      Sergeant Donato testified that when he first came into contact with
appellant, appellant exhibited signs of intoxication in that he smelled of alcohol,
his speech was slurred, and his eyes were glassy. Donato attempted to administer
the field sobriety tests, but appellant refused the first two tests because he was
physically unable to complete them. Donato then asked appellant to perform a
finger counting test and to recite portions of the alphabet forward and backward.
Appellant failed the counting test, but passed the alphabet test. Donato also
observed appellant lose his balance several times. A video of these tests was
admitted into evidence and played for the jury.

      Donato administered two breathalyzer tests at 2:49 p.m., approximately one
and a half hours after Araiza stopped appellant.1 The tests produced evidence of
alcohol concentrations of 0.216 and 0.217. The Department of Public Safety
employee who testified about the test results stated that the employee did not have
enough information to extrapolate an alcohol level at the time appellant was
driving.


      1
          Araiza testified that he stopped appellant at approximately 1:21 p.m.

                                                 3
                          SUFFICIENCY OF THE EVIDENCE

      In his third issue, appellant argues the evidence is insufficient to support his
conviction. Specifically, appellant contends the evidence is insufficient to prove
that an analysis of his breath showed an alcohol concentration level of at least 0.15
at or near the time of the commission of the offense.

      When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational factfinder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). We do not sit as thirteenth juror and may not substitute our
judgment for that of the factfinder by reevaluating the weight and credibility of the
evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      We measure evidentiary sufficiency against the “elements of the offense as
defined by the hypothetically correct jury charge for the case.” Fuller v. State, 73
S.W.3d 250, 252 (Tex. Crim. App. 2002). That is, “one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.”
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard
“ensures that a judgment of acquittal is reserved for those situations in which there
is an actual failure in the State’s proof of the crime rather than a mere error in the
jury charge submitted.” Id.; Atkins v. State, 402 S.W.3d 453, 457 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d).

      It is an offense in Texas to operate a motor vehicle while intoxicated in a
public place. To establish a Class B misdemeanor, the State must prove the
                                          4
defendant operated a motor vehicle while “intoxicated,” meaning either (1) not
having the normal use of mental or physical faculties by reason of the introduction
of alcohol, or (2) having an alcohol concentration of 0.08 or more. See Tex. Penal
Code Ann. §§ 49.01(2), 49.04(a),(b). To establish a Class A misdemeanor, as here,
the State must also prove the defendant had an alcohol concentration of over 0.15,
determined at the time of the analysis rather than at the time of driving. Tex. Penal
Code Ann. § 49.04(d) (providing that State must prove “an analysis of a specimen
of the person’s blood, breath, or urine showed an alcohol concentration level of
0.15 or more at the time the analysis was performed,” to elevate offense to Class A
misdemeanor).

      Therefore, we review whether the evidence was sufficient to show that
appellant was intoxicated at the time of driving and whether appellant’s alcohol
concentration level was 0.15 or more at the time the analysis was performed. See
Tex. Penal Code Ann. § 49.04.

      Araiza testified that when he stopped appellant’s vehicle and began asking
questions attendant to a traffic stop, Araiza noticed the odor of alcohol on
appellant’s breath, and that appellant’s eyes were extremely red and bloodshot.
Appellant’s speech was slurred and he was unable to stand without leaning on the
car. Appellant was unable to perform Araiza’s requested field sobriety tests.
Approximately one and a half hours later, breathalyzer tests revealed alcohol
concentrations of 0.216 and 0.217. Appellant argues the evidence was insufficient
to prove that an analysis of his breath showed an alcohol concentration level of at
least 0.15 at or near the time of the commission of the offense. As discussed above,
under the hypothetically correct jury charge analysis, the State was not required to
prove the alcohol concentration level at the time of the offense as appellant
contends, but was required to prove the alcohol concentration at the time of the

                                         5
analysis. Because the evidence showed alcohol concentration of more than 0.15 at
the time of the analysis, the evidence was sufficient to support the conviction. We
overrule appellant’s third issue.

                               MOTION TO SUPPRESS

      In his first issue appellant argues the trial court erred in denying his motion
to suppress the traffic stop based on a lack of reasonable suspicion. When the State
introduced the 911 call into evidence, appellant objected on hearsay grounds.
Appellant requested a hearing outside the presence of the jury and also moved to
suppress the traffic stop based on the fact that the 911 call did not provide specific
and articulable facts that, combined with rational inferences from those facts, led
Araiza to reasonably conclude that at the time of the stop, appellant was, had been,
or would soon be engaged in criminal activity. Appellant argued that Patty’s
comments that appellant was intoxicated were conclusory and could not support
reasonable suspicion to stop appellant. The trial court denied appellant’s motion.

      We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013). The trial court’s determinations of historical facts and mixed questions of
law and fact that rely on credibility are granted almost total deference when
supported by the record. Id. But when mixed questions of law and fact do not
depend on the evaluation of credibility and demeanor, we review the trial court’s
ruling de novo. Id. Whether the facts known to the officer at the time of the
detention amount to reasonable suspicion is a mixed question of fact and law that
is reviewed de novo on appeal. Id. When, as in this case, the trial judge does not
make formal findings of fact, we uphold the trial court’s ruling on any theory of
law applicable to the case and presume the court made implicit findings in support
of its ruling if those findings are supported by the record. State v. Ross, 32 S.W.3d

                                          6
853, 855–56 (Tex. Crim. App. 2000).

      Under the Fourth Amendment, a warrantless detention of a person that
amounts to less than a full custodial arrest must be justified by a reasonable
suspicion. Kerwick, 393 S.W.3d at 273. “[A] law enforcement officer’s reasonable
suspicion that a person may be involved in criminal activity permits the officer to
stop the person for a brief time and take additional steps to investigate further.”
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004). Reasonable
suspicion to detain a person exists if an officer has specific, articulable facts that,
combined with rational inferences from those facts, would lead him or her to
reasonably conclude that the person detained is, has been, or soon will be engaged
in criminal activity. Kerwick, 393 S.W.3d at 273. 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, but the likelihood of
criminal activity need not rise to the level required for probable cause to arrest. Id.
at 273–74. 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. Id. at 274. A reasonable-suspicion determination must be based
on the totality of the circumstances, and reasonable suspicion may exist even if the
circumstances presented are as consistent with innocent activity as with criminal
activity. Id; Terrell v. State, 473 S.W.3d 420, 423 (Tex. App.—Houston [14th
Dist.] 2015, no pet.)

      The detaining officer need not be personally aware of every fact that
objectively supports a reasonable suspicion to detain; instead, the cumulative
information known to cooperating officers at the time of the stop must be
considered in determining whether reasonable suspicion exists. Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police dispatcher is

                                          7
generally regarded as a cooperating officer for purposes of this analysis. See id.
Moreover, information provided to police by a citizen-informant who identifies
herself and may be held to account for the accuracy and veracity of her report may
be regarded as reliable. Id. at 914–15. The only question in that scenario is whether
the information provided by the citizen—viewed through the prism of the detaining
officer’s knowledge and experience—objectively supports a reasonable suspicion
to believe that criminal activity is afoot. Id. at 915.

       In this case, there is no question as to the reliability of the citizen informant.
Appellant’s sister identified herself by name and gave her phone number to the
police dispatcher. Patty’s report was based on first-hand perceptions, which she
continuously reported to the 911 dispatcher and Araiza. Araiza was entitled to rely
on the objective information reported by Patty in making the investigative stop. See
Derichsweiler, 348 S.W.3d at 915. Even if Araiza was not aware of all of the
information given by Patty, the 911 dispatcher was. The issue here is whether the
totality of the reliable information provided specific, articulable facts that,
combined with reasonable inferences to be derived from those facts, would lead to
the reasonable conclusion that appellant was committing some type of criminal
activity.

       Appellant relies on Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005),
for the court’s analysis about the unreliability of conclusory reports to police. In
Ford, the detaining officer testified that he pulled the defendant over after
observing the defendant following another vehicle “too closely.” Id. at 491. The
officer explained that he believed the defendant had committed the traffic offense
of “[f]ollowing too close.” Id.; see also Tex. Transp. Code § 545.062(a)
(prescribing safe following distances for vehicles). The officer did not provide any
specific information regarding conditions at the time of the stop beyond the time of

                                            8
day and did not offer any details regarding how closely the defendant was
following the other vehicle. The trial court and the court of appeals held that the
officer’s testimony was sufficient to support a reasonable suspicion justifying an
investigative detention. Ford, 158 S.W.3d at 491–92. The court of appeals
specifically reasoned that the officer’s training and experience qualified him to
make a judgment regarding whether the defendant was violating the law by
following the other vehicle too closely given the conditions present on the
roadway. Id. The Court of Criminal Appeals reversed, however, holding that the
officer’s testimony was conclusory and failed to offer specific, articulable facts
that a court could use in assessing whether the officer’s opinion was objectively
reasonable. Id. at 493–94. The Court acknowledged that an officer’s training and
experience may factor into the analysis but stated that relying on those factors
without objective factual support was inappropriate. Id.

      Ford is distinguishable from the case before us. Unlike the officer in Ford,
Araiza did not base reasonable suspicion to stop appellant solely on his training
and experience. Araiza admitted he stopped appellant based on the 911 dispatch
and Patty’s report that appellant was driving while intoxicated. Appellant argues
that Patty’s “conclusory statement that Appellant was intoxicated was not an
effective substitute for specific facts.” The 911 call in this case contained more
than a simple statement that appellant was intoxicated. The call began with Patty’s
plea for help getting her brother to a psychiatric hospital and a report that he was
“out wandering around drunk.” Patty described appellant as combative and asked
for medical help. Before Patty could confirm her location to the dispatcher, she
said, “Oh no, he’s gonna drive.” At that time, the 911 dispatcher determined that
the situation would be better handled by police, not medical personnel. Patty
followed appellant in her vehicle and relayed information about appellant’s driving


                                         9
and location to the dispatcher and Araiza in real time.

       “Reasonable suspicion depends on ‘the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal technicians, act.’”
Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 1690 (2014) (quoting
Ornelas v. United States, 517 U.S. 690, 695 (1996)). In this case, Araiza was given
more information than a simple statement that appellant was intoxicated. The 911
call was made by a sister concerned for her brother’s welfare. She stated that she
knew he was intoxicated and combative. Before getting in the car, appellant was
“wandering around drunk.” Patty tried to prevent appellant from driving, but was
unable to do so. Araiza also was told that appellant was driving with his hazard
lights flashing.

       Considering the totality of the circumstances, we conclude that the record
contains sufficient facts to support a finding that Araiza had a reasonable basis
upon which to conclude that appellant was driving while intoxicated when he
initiated the stop. See Brother v. State, 166 S.W.3d 255, 259–60 (Tex. Crim. App.
2005) (officer had reasonable suspicion to stop driver when citizen gave a detailed
description of suspect’s car, location, and erratic driving, and followed behind
suspect assisting officer in identifying the proper vehicle). We overrule appellant’s
first issue.

                                   JURY CHARGE

       In his second issue appellant argues the trial court erred in submitting a jury
charge that did not track the language of the statute. At the charge conference,
appellant’s counsel argued that under Navarro v. State, 469 S.W.3d 687 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d), the State was required to prove as an
element of the offense that appellant’s blood alcohol level was 0.15 or higher.
During the ensuing discussion, appellant insisted that the jury charge should read
                                          10
exactly as the information read, not the statute.

      The information alleged that appellant, “on or about MARCH 10, 2014, did
then and there unlawfully operate a motor vehicle in a public place while
intoxicated.” The information further alleged that “at or near the time of the
commission of the offense, an analysis of the Defendant’s BREATH showed an
alcohol concentration of at least 0.15.” (emphasis added) Appellant was charged
under section 49.04(d) of the Texas Penal Code, which provides, “If it is shown on
the trial of an offense under this section that an analysis of a specimen of the
person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or
more at the time the analysis was performed, the offense is a Class A
misdemeanor.” (emphasis added) Tex. Penal Code Ann. § 49.04(b).

      After a lengthy discussion on the jury charge with regard to the element of
alcohol concentration of 0.15, the trial court recessed to permit an appellate
attorney from the district attorney’s office to opine on the issue. The appellate
attorney pointed out that the information in this case did not track the statute. The
information referred to an alcohol concentration measured at the time of the
offense. The statute requires proof of alcohol concentration above 0.15 at the time
the analysis is performed. The State argued that the charge should track the
language of the statute. Appellant objected to the court’s proposed charge, which
tracked the language of the statute. After more research, the following exchange
occurred between the appellate attorney from the State and appellant’s attorney:

      MS. DAVIS [State]: So just to understand, Mr. Flood, you would
      have no objection if it trapped [sic] the language of the information of
      what the Judge said that it’s at or near the commission of the offense?
      MR. FLOOD [defense counsel]: That’s what I’m requesting. Right.
      MS. DAVIS: Okay.
      MR. FLOOD: My objection is that it differs from the information that

                                          11
      we were arraigned under.
      MS. DAVIS: Okay. Based on kind of what I was reading as well as
      my phone-a-friend, Judge, I think that we’ll withdraw our proposal
      and we’ll accept Mr. Flood’s at or near the time of the commission of
      the offense but — and we also agree it should not be a special issue.
      On appeal appellant complains that the trial court erred in submitting a
charge that did not track the language of the statute. The record reflects, however,
that appellant requested the erroneous charge. When a defendant requests a charge,
and the court submits it, he cannot complain of that charge on appeal. Tucker v.
State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988). Even if the charge is later
found to be erroneous, the accused cannot first invite error and then complain
about it on appeal. Id.; Ortiz v. State, 144 S.W.3d 225, 230 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d). Because appellant cannot take advantage of an error
that he invited, we overrule appellant’s second issue.

      We affirm the trial court’s judgment.




                                       /s/    Martha Hill Jamison
                                              Justice



Panel consists of Justices Boyce, Christopher, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                         12
