             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00465-CR
      ___________________________

  CHRISTOPHER LEWIS ROTH, Appellant

                     V.

           THE STATE OF TEXAS


 On Appeal from County Criminal Court No. 4
           Denton County, Texas
     Trial Court No. CR-2016-09799-D


Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      In a single issue, Appellant Christopher Lewis Roth appeals his conviction for

driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04. Roth argues that

the trial court erred by denying his motion to suppress because the officer’s traffic

stop was conducted without reasonable suspicion. We agree with Roth; the State did

not meet its burden to establish reasonable suspicion. We reverse and remand.

                                     Background

      City of Frisco police officer Julio Vargas was the only witness at the

suppression hearing. Officer Vargas testified that in the early morning hours of

March 20, 2015, 9-1-1 dispatch reported “that there were two subjects inside

RaceTrac. One was in a - - or had pulled up in a white F-150. The other one was in a

black-colored SUV. Both subjects were inside the store slurring their speech and

stumbling.” When Officer Vargas responded to the call, he spotted a white Ford F-

150 pulling out of the RaceTrac parking lot. Officer Vargas immediately initiated a

traffic stop and, after an investigation, arrested the driver, Roth, on suspicion of DWI.

       On cross-examination, Officer Vargas confirmed that the only basis for the

stop was his suspicion that Roth was intoxicated. He testified that his suspicion was

based upon the information relayed from the 9-1-1 dispatcher. But what Officer

Vargas could not state with certainty was whether the dispatcher had informed him

before the stop that the male and female were “stumbling and slurring” -



                                           2
      Q. Okay. You testified that the 911 caller said that a male and a female
      were stumbling and slurring. Correct?

      A. That’s correct.

      Q. And then they were getting in their cars to leave.

      A. That’s correct.

      Q. Did you receive the information in that order?

      A. I don’t remember how the order came in, but that - - the information
      was prior to making the stop.

      Q. It was prior to making the stop?

      A. I believe so.

      Q. But you’re not certain?

      A. I’m not – I’m not certain, but I believe so.

      Q. Okay. So there is a possibility that this information - - that you did
      not get the information about slurring speech before you activated your
      overhead lights.

      A. I don’t know about the slurring speech.

      Q. And the stumbling.

      A. I don’t know if that - - because those two, I think, came together, but
      I don’t know if that came before the stop. The information that I got
      was that there were two intoxicated subjects and they were leaving in a
      white F-150 and a black SUV.

      Officer Vargas admitted that he did not state in his application for a DWI

blood draw that he detained Roth after learning that he was “stumbling and slurring”

inside the RaceTrac. And although Officer Vargas suggested that he may have


                                            3
included the “stumbling or slurring” information in the report he prepared after the

stop, other information in the record suggests to the contrary. At the conclusion of

the evidence, Roth’s attorney argued that neither the report nor the affidavit in

support of the warrant contained any information about the timing of the “stumbling

and slurring” evidence –

      In reading through [Officer Vargas’s] report, reading through his
      affidavit for the search warrant, he does not give one single articulable
      fact to support reasonable suspicion. He doesn’t mention slurring. He
      doesn’t mention stumbling.

      I pinned the officer down to confirm the reason that he stopped Mr.
      Roth, and he said the reason was because of an intoxication - -
      intoxicated persons call. I asked if there were any other reasons. He
      said no. Other reasons would have been a report of someone stumbling,
      slurring, articulable facts. He didn’t have any of them.

The state did not object to counsel’s statement or refute his contention in rebuttal

argument. And the report was not admitted into evidence. To the extent that the 9-

1-1 recording could have shed light on the timing of the “stumbling and slurring”

information, it too was not admitted into evidence.

      At the end of the hearing, the trial court found that Officer Vargas did not

have the “stumbling and slurring” information at the time he stopped Roth. In

denying the motion to suppress, the trial court stated,

      I’m taking the position that . . . Officer Vargas . . . does not have the
      stumbling or the slurred speech in his information at the time he
      stopped [Roth] . . . . But my interpretation of Derichsweiler and these
      cases are if law enforcement as a whole has that information, whether he
      has it or not, it’s counted towards the - - being not just conclusory, but
      being enough for reasonable suspicion.

                                           4
             So I am finding that there was reasonable suspicion for the stop.

      The trial court later entered findings of fact and conclusions of law that

included the following relevant findings and conclusions:

      3. Officer Vargas testified before this Court at a hearing on defendant’s
      Motion to Suppress. The Court finds his testimony to be credible in all
      respects.
      ...
      5. On March 20, 2015, at approximately 1:36 a.m., Frisco PD 911
      dispatch received a 911 call from Cameron Soller,[1] an employee of the
      RaceTrac located at 4740 Main Street, Frisco, Texas.
      6. The caller reported that two intoxicated individuals had been
      stumbling around and slurring their speech inside of the RaceTrac and
      were leaving the store in their respective vehicles.
      7. Unaware of the information in 5. & 6. above, Officer Vargas heard
      the 911 dispatcher advise of an intoxicated persons call located at 4740
      Main Street, Frisco, Texas.
      8. Officer Vargas was notified by the dispatcher that one of the
      intoxicated individuals had gotten into a white pick-up truck and was
      heading out from 4740 Main Street onto Legacy Drive.




      1
        This finding is unsupported by the record—the RaceTrac employee was never
identified by name during the hearing or in any exhibits admitted into evidence at the
hearing. The State dismisses this discrepancy by arguing that a witness statement
attached to Officer Vargas’s probable cause affidavit and filed in the trial court was
“available to the trial court” and to Roth. But at no point did the trial court take
judicial notice of its file (nor did the State make such a request) and the State made no
attempt to offer this witness statement into evidence. On appeal, the State offers no
authority for its argument that everything contained in the trial record should be
considered on appeal to fill in the holes in the State’s proof at a hearing. We decline
to apply that standard.


                                           5
9. Upon arrival at the RaceTrac, Officer Vargas observed a white Ford
F-150 leaving the parking lot of 4740 Main Street and heading
northbound on Legacy Drive.
10. Officer Vargas observed the vehicle make a U-turn to head
southbound on Legacy Drive toward Main Street.
11. Due to the 911 call regarding a potentially intoxicated driver, Officer
Vargas initiated a traffic stop on the white truck for suspicion of driving
while intoxicated.
....
                      CONCLUSIONS OF LAW
....
2. A temporary detention, under the Fourth Amendment, is justified
when the officer has specific articulable facts which, taken together with
rational inferences from those facts, lead the officer to conclude that the
person detained is, has been, or soon will be engaged in criminal activity.
Terry v. Ohio, 392 U.S. 1 (1968).
3. The detaining officer need not be personally aware of every fact that
objectively supports a reasonable suspicion to detain; rather, “the
cumulative information known to the cooperating officers at the time of
the stop is to be considered in determining whether reasonable suspicion
exists.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.
2011). A 911 police dispatcher is ordinarily regarded as a “cooperating
officer” for purposes of making this determination. Id.
4. Information provided to police from a citizen-informant who
identifies himself and may be held to account for accuracy and veracity
of his report may be regarded as reliable. Id. at 914-15. [sic]
5. Here, Frisco PD 911 dispatcher was aware that an identified 911
caller was reporting an intoxicated person slurring his speech and
stumbling inside of the caller’s place of employment and attempting to
drive away.
6. These facts, when combined with rational inference from those facts,
led officer Vargas to reasonably detain defendant for driving while
intoxicated.


                                    6
      7. As a result, the Court finds that Officer Vargas had sufficient
      reasonable suspicion to pull over and temporarily detain defendant.
                                      Discussion

I. Standard of review

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial

court’s decision, we do not engage in our own factual review. Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.

App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of

the witnesses’ credibility and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to the

trial court’s rulings on (1) questions of historical fact, even if the trial court

determined those facts on a basis other than evaluating credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on evaluating credibility and

demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09

(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the witnesses’

credibility and demeanor, we review the trial court’s rulings on those questions

de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.

App. 2005); Johnson, 68 S.W.3d at 652–53.



                                            7
       Stated another way, when reviewing the trial court’s ruling on a suppression

motion, we must view the evidence in the light most favorable to the ruling. Wiede,

214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When

the trial court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those findings.

Kelly, 204 S.W.3d at 818–19. We then review the trial court’s legal ruling de novo

unless its explicit fact findings that are supported by the record are also dispositive of

the legal ruling. Id. at 818.

       Even if the trial court gave the wrong reason for its ruling, we must uphold the

ruling if it is both supported by the record and correct under any applicable legal

theory. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v.

State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

II. The Fourth Amendment and reasonable suspicion

       The Fourth Amendment protects against unreasonable searches and seizures

by government officials.        U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24.         A

defendant seeking to suppress evidence on Fourth Amendment grounds bears the

initial burden to produce some evidence that the government conducted a warrantless

search or seizure that he has standing to contest. State v. Martinez, No. PD-0324-17,

2019 WL 137754, at *1 (Tex. Crim. App. Jan. 9, 2019) (quoting Russell v. State, 717

S.W.2d 7, 9 (Tex. Crim. App. 1986), disavowed in part on other grounds by Handy v. State,

189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006)); Handy, 189 S.W.3d at 298–99; see,

                                            8
e.g., Rawlings v. Kentucky, 448 U.S. 98, 104–05, 100 S. Ct. 2556, 2561 (1980). Once the

defendant does so, the burden shifts to the State to prove either that the search or

seizure was conducted pursuant to a warrant or, if warrantless, was otherwise

reasonable. Martinez, 2019 WL 137754, at *1 (quoting Russell, 717 S.W.2d at 9);

Amador, 221 S.W.3d at 672–73.

       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. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v.

State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful

temporary detention when he reasonably suspects that an individual is violating the

law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d

448, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the

totality of the circumstances, the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude that a particular person is, has been, or soon will be engaged in criminal

activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards the

detaining officer’s subjective intent and looks solely to whether the officer has an

objective basis for the stop. Id.

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

supports a reasonable suspicion to detain; rather, “the cumulative information known

to the cooperating officers at the time of the stop is to be considered in determining

                                            9
whether reasonable suspicion exists.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.

Crim. App. 2011) (citing Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924

(1972); and quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). 9-1-1

police dispatchers are ordinarily regarded as cooperating officers for purposes of

reasonable-suspicion determinations. Id. And information provided to police “from a

citizen-informant who identifies himself and may be held to account for the accuracy

and veracity of his report may be regarded as reliable.” Id. at 914–15 (citing Adams,

407 U.S. at 147, 92 S. Ct. at 1924). Our only question in such a scenario is “whether

the information that the known citizen-informant provide[d], viewed through the

prism of the detaining officer’s particular level of knowledge and experience,

objectively supports a reasonable suspicion to believe that criminal activity is afoot.”

Id. (internal citation omitted).

III. Application

       We agree with the trial court’s conclusion that the 9-1-1 dispatcher was a

“cooperating officer” and, as such, the dispatcher’s knowledge was imputed to Officer

Vargas. See id. at 914. But here we must specifically focus on the 9-1-1 dispatcher’s

knowledge prior to Officer Vargas’s detention of Roth. See id. (reciting that the

cumulative information known “at the time of the stop” is to be considered in

determining whether reasonable suspicion exists). The State carried the burden to

establish that the 9-1-1 dispatcher knew, prior to the detention, specific, articulable

facts that, when combined with reasonable inference, would lead an officer to

                                          10
reasonably conclude that a particular person is, has been, or soon will be engaged in

criminal activity.   See Ford, 158 S.W.3d at 492.      A report of someone “being

intoxicated” is a subjective determination that does not provide the specific,

articulable facts necessary to establish reasonable suspicion. See Castro v. State, 227

S.W.3d 737, 742 (Tex. Crim. App. 2007).

      Whether the 9-1-1 dispatcher knew that the RaceTrac employee had observed

Roth and his accomplice “slurring words and stumbling” and reported that fact to 9-

1-1 before Officer Vargas detained Roth (or at all) is not established in the record

before us. Neither the 9-1-1 dispatcher nor the RaceTrac employee testified at the

hearing. The State did not offer a recording of the 9-1-1 call into evidence. The sole

basis for the trial court’s finding that “The caller reported that two intoxicated

individuals had been stumbling around and slurring their speech inside of the

RaceTrac and were leaving the store in their respective vehicles” was Officer Vargas’s

testimony. But not only did Officer Vargas’s testimony not establish when he knew

that fact—which the trial court acknowledged in its findings—Officer Vargas’s

testimony also fell short of establishing even when the 9-1-1 dispatcher knew that

information. According to Officer Vargas, the earliest that he would have made a

note about Roth’s “stumbling or slurring” would have been after he had already

“made contact” with Roth, and the record does not indicate that any note to that

effect was ever made.



                                          11
       The State asks us to disregard these discrepancies because Roth’s cross-

examination established that he was aware of a “call sheet” or “post-run call report”

detailing the dispatcher’s communication with the caller and officers in the field, and

that “[i]f [Roth] had definitive evidence that the caller did not report stumbling and

slurring until after the stop, presumably from the call sheet, he failed to introduce that

evidence into the record.” In making such an argument, the State invites us to reverse

the burden of proof. It was the State’s burden—not Roth’s—to establish reasonable

suspicion. See Martinez, 2019 WL 137754, at *1; Amador, 221 S.W.3d at 672–73. We

therefore reject this argument.

      The evidence showed nothing more than that at some time before Roth was

detained by Officer Vargas, a RaceTrac employee reported to 9-1-1 the presence of

two intoxicated persons in the store, one of whom was about to drive away in a white

F-150. Because this is not sufficient to establish reasonable suspicion, see Castro, 227

S.W.3d at 742, we sustain Roth’s sole issue on appeal.

                                      Conclusion

      Having sustained Roth’s sole issue on appeal, we reverse the trial court’s

judgment and remand this case for further proceedings consistent with this opinion.


                                                       /s/ Bonnie Sudderth
                                                       Bonnie Sudderth
                                                       Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

                                           12
Delivered: August 26, 2019




                             13
