                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 2-09-340-CR


TIMOTHY SHAWN RAY                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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      In one point that challenges only the trial court‘s pretrial denial of his

motion to suppress evidence, appellant Timothy Shawn Ray appeals his

conviction for driving while intoxicated (DWI).   See Tex. Penal Code Ann.

§ 49.04(a) (Vernon 2003). We affirm.

                              Background Facts

      The facts underlying this appeal are undisputed. Near evening on June 7,

2008, Jeanie Allen was driving a car on a busy road when she saw appellant


      1
      See Tex. R. App. P. 47.4.
weave in his own lane and between lanes and drive up onto the curb with two

tires. Allen called 911 because she was concerned that appellant was drunk.

After Allen told the 911 operator her name and phone number, she gave the

operator a description of appellant‘s car—including its make, model, and license

plate number—and continued to follow appellant.          Appellant turned into the

parking lot of a convenience store, and Allen still followed appellant while she

remained on the phone.

      Allen watched appellant park the car and enter the store. Based on Allen‘s

information as relayed through dispatch, Arlington Police Department Officer

Brian Martin eventually arrived at the store.2 Allen urgently flagged down Officer

Martin and insistently said, ―That‘s the car right there.‖3 While Allen and Officer

Martin were talking, appellant left the store and returned to his car. Officer Martin

pulled in behind appellant and turned on his patrol car‘s lights for an investigative

stop as appellant was leaving the parking lot. Appellant drove a short distance

and then stopped.

      Officer Martin‘s stopping appellant‘s car led to the State‘s charging him

with DWI.    Appellant filed a pretrial motion to suppress based on alleged


      2
         Officer Martin said that the dispatcher told him ―just basically that the
person who called 911, they had -- they were behind someone who they thought
. . . might possibly be a DWI driver.‖ The dispatcher did not specifically describe
what Allen had said about appellant‘s driving.
      3
      Allen also informed Officer Martin of her belief that appellant‘s driving was
dangerous to other drivers.

                                         2
violations of the United States Constitution and the Texas constitution.

During the evidentiary hearing on the motion, appellant argued that Officer Martin

did not have reasonable suspicion to detain him because, among other reasons,

Officer Martin did not have the same information regarding appellant‘s erratic

driving that Allen had told the dispatcher.       Thus, appellant asserted that all

evidence that followed the stop of his car could not be used at trial. The trial

court denied appellant‘s motion, and appellant pled guilty under a plea bargain.

The trial court convicted appellant, and appellant filed his notice of this appeal.

                    Denial of Appellant’s Motion to Suppress

Standard of review

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.      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 credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

                                           3
was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of 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 credibility

and demeanor of the witnesses, 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.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). We must uphold the trial court‘s ruling if it is supported

by the record and correct under any theory of law applicable to the case. 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), cert. denied, 541 U.S. 974 (2004).

Applicable law and analysis

      The Fourth Amendment protects against unreasonable searches and

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

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015

                                        4
(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

       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, 21–22, 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 or she has reasonable

suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at

492.     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. Id.

This is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists. Id.

       Appellant contends that the trial court erred by denying his motion to

suppress because Officer Martin ―received an uncorroborated citizen informant‘s

                                        5
report of bad driving facts[,] and without observing any actions by the suspect

driver or any criminal acts whatsoever . . . [Officer Martin] initiated a stop.‖

But precedent from this court compels us to disagree with appellant‘s legal

conclusion and hold that Officer Martin had reasonable suspicion to stop

appellant‘s car and detain him.

      In State v. Stolte, a driver saw Stolte‘s car driving slowly and weaving in

and out of its traffic lane. 991 S.W.2d 336, 340 (Tex. App.—Fort Worth 1999, no

pet.). The driver believed that Stolte was ―a danger to himself as well as other

drivers‖ and therefore called 911 through a cell phone while continuing to follow

the suspected drunk driver. Id. A dispatcher notified Bedford Police Department

Officer Michael Kratky that the caller had reported a suspected DWI, gave Officer

Kratky a description of Stolte‘s pickup, and told Officer Kratky which direction

Stolte was traveling. Id. at 339. Officer Kratky found Stolte‘s pickup, turned on

his patrol car‘s emergency lights, and stopped the pickup as the cell phone caller

stopped behind Officer Kratky‘s patrol car. Id. at 339–40.

      Based on Officer Kratky‘s observations after stopping Stolte‘s pickup,

Stolte was charged with DWI, and he filed a motion to suppress on the basis that

Officer Kratky did not have reasonable suspicion to detain him. Id. The trial

court granted the motion. Id. at 339. On appeal, Stolte argued that ―an officer

may not make an investigative stop based solely on an anonymous call that does

not relate any of the details on which the caller based his opinion, unless the

officer personally corroborates the report with other matters within the officer‘s

                                        6
knowledge.‖ Id. But we held that Officer Kratky had reasonable suspicion to

detain Stolte, and therefore reversed and remanded the case, reasoning,


       A tip by an unnamed informant of undisclosed reliability standing
       alone rarely will establish the requisite level of suspicion
       necessary to justify an investigative detention. There must be
       some further indicia of reliability, some additional facts from
       which a police officer may reasonably conclude that the tip is
       reliable and a detention is justified. The informant‘s veracity,
       reliability, and basis of knowledge are highly relevant in
       determining the value of the caller‘s report. . . .

            Corroboration by the law enforcement officer of any
       information related by the informant may increase the reliability
       of the information. However, ―corroboration‖ in this sense does
       not mean that the officer must personally observe the conduct
       that causes him to reasonably suspect that a crime is being, has
       been, or is about to be committed. Rather, corroboration refers
       to whether the police officer, in light of the circumstances,
       confirms enough facts to reasonably conclude that the
       information given to him is reliable and a temporary detention is
       thus justified.

             Where the reliability of the information is increased, less
       corroboration is necessary.        A detailed description of the
       wrongdoing, along with a statement that the event was observed
       firsthand, entitles an informant‘s tip to greater weight. So does
       the fact that the person put himself in a position to be held
       accountable for his intervention. Furthermore, a person who is
       not connected with the police or who is not a paid informant is
       considered inherently trustworthy when he advises the police
       that he suspects criminal activity has occurred or is occurring.

            ....

            In this case, Kratky testified that his dispatcher advised him
       that a cellular phone caller had reported a possible DWI and was
       following the suspect. . . . Because the caller had given the
       license plate number, a specific description of the vehicle, and
       was continually updating the dispatcher on the location of the


                                       7
          suspect‘s vehicle, Kratky had every reason to believe that he
          was detaining the right person. . . .

               Moreover, although he did not know the citizen-informant‘s
          name, Kratky testified that in cases like this, it is standard
          procedure for the dispatcher to instruct callers to pull in behind
          the patrol car and wait to be contacted by an officer. Thus,
          Kratky knew that he could learn the identity of the citizen-
          informant who had called in the report. Likewise, [the cell phone
          caller] undoubtedly knew that by calling the police and stopping
          at the scene, he was putting himself in a position to be held
          accountable for his intervention. In addition, [the caller] told the
          dispatcher that he was personally watching Stolte, which entitled
          the police to give greater weight to the tip. Kratky also knew that
          the concerned citizen had remained on his cellular phone to
          track and report the suspect‘s location, which lent credence to
          the caller‘s veracity. . . .

              ....

               . . . Acting on the information he had at the time of the
          detention, without the benefit of hindsight, it was reasonable for
          Kratky to suspect that Stolte might be driving while intoxicated
          and to conclude that a brief detention was warranted to further
          investigate.[4] Thus, in light of the totality of the circumstances,
          including both the important public and private interests involved,
          we hold that Kratky was justified in initiating an investigatory stop
          ....

Id. at 341–43 (citations omitted).

      The similarity between the facts of this case and those in Stolte is obvious.

In both cases,

              a driver saw someone that the driver suspected to be intoxicated
              based on a car‘s swerving and called 911, keeping the 911 operator

      4
        We explained that ―it would be wholly unreasonable, under these facts, to
require a police officer to ‗corroborate‘ an informant‘s tip by waiting for the
suspect to swerve out of his lane or otherwise jeopardize the safety of other
drivers.‖ Stolte, 991 S.W.2d at 343 n.4.

                                           8
             aware of the swerving car‘s location and giving the operator a
             detailed description of the car;

             the caller remained in contact with the police and was accountable
             to the detaining officer for the information the caller had given;5

             the dispatch to the officer did not relate the particular details from the
             caller that supported the caller‘s opinion of intoxication;

             the officer did not personally corroborate evidence of intoxication;
             and

             the caller did not have a direct connection with the arresting police.6

On the other hand, the facts of the cases relied on by appellant are inapposite to

the facts of this case. See, e.g., Gurrola v. State, 877 S.W.2d 300, 301–03 (Tex.

Crim. App. 1994) (holding that an officer did not have justification for detaining

and searching the defendant in a high crime area based only on the officer‘s

being informed that a ―disturbance‖ was occurring, the officer‘s observing a

―heated discussion,‖ and the defendant‘s walking away from the officer); Glass v.

State, 681 S.W.2d 599, 600–02 (Tex. Crim. App. 1984) (holding that the trial

court should have granted the defendant‘s motion to suppress when an officer

stopped a car based on the officer‘s receiving a call from an anonymous source


      5
        While the caller in Stolte pulled behind the officer when the officer
detained Stolte, Allen remained in the convenience store‘s parking lot when
appellant went into the store, actually saw and talked to the officer outside of the
store, and gave the police her name and phone number so that the police could
contact her.
      6
        Allen‘s husband is a police officer, but he works for the City of Irving, not
Arlington. The record does not show that Allen knew the 911 operator or Officer
Martin before she saw appellant‘s swerving car.

                                          9
because, among other reasons, the record did not show the temporal proximity of

the call to the stop of the defendant‘s car).

      Thus,    following   our   decision   in   Stolte,   which   we   conclude   is

indistinguishable from this case, we agree with the trial court‘s implicit conclusion

(evidenced from its denial of appellant‘s motion) that Officer Martin had

reasonable suspicion to detain appellant.7 See Stolte, 991 S.W.2d at 341–43;

see also Brother v. State, 166 S.W.3d 255, 256–60 (Tex. Crim. App. 2005), cert.

denied, 546 U.S. 1150 (2006); Pipkin v. State, 114 S.W.3d 649, 652–56 (Tex.

App.—Fort Worth 2003, no pet.) (citing Stolte and holding similarly under

analogous facts); Glover v. State, 870 S.W.2d 198, 199–200 (Tex. App.—Fort

Worth 1994, pet. ref‘d). Therefore, we overrule appellant‘s sole point.

                                    Conclusion

      Having overruled appellant‘s point of error, we affirm the trial court‘s

judgment.



                                                     TERRIE LIVINGSTON
                                                     CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER AND MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 22, 2010

      7
      Our previous decisions are binding precedent. See Bray v. State, 179
S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.) (en banc).

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