                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00312-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

STACIE MICHELLE KERWICK                                                 APPELLEE


                                      ----------

     FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

                                      ----------

                                    OPINION
                                      ----------

                                 I. Introduction

      In this State‘s appeal, the primary issue we address is whether the trial

court abused its discretion by granting Appellee Stacie Michelle Kerwick‘s motion

to suppress. Based on the standard of review that we are required to apply, we

cannot hold that the trial court‘s ruling was outside the zone of reasonable

disagreement. Accordingly, we will affirm the trial court‘s suppression ruling.
                             II. Factual Background

      At around 12:19 a.m., Fort Worth Police Officer Jeffrey J. Bradford was

dispatched to a bar on North Main Street in Fort Worth in response to a call

about several people fighting in front of the bar. When Officer Bradford arrived at

the bar, several people were standing outside in front of the bar. Officer Bradford

made contact with the person he believed to be the person who had called the

police. The person was the owner of a damaged vehicle. That person pointed to

a vehicle parked on the street across from the bar and said, ―There they are right

there. There they are, there they are.‖         Officer Bradford walked over to the

vehicle as it started moving northbound on the street and stopped the vehicle by

yelling at the driver, ordering her to stop.      Officer Bradford testified that he

―believed that they—at that point they were involved in an offense.‖

      Appellee was charged with driving while intoxicated. She filed a motion to

suppress. At the suppression hearing, Officer Bradford was the only witness to

testify, and no exhibits were admitted into evidence.           The State‘s entire

questioning of Officer Bradford concerning his initial investigatory detention of

Appellee—after     predicatory      questions    establishing   Officer   Bradford‘s

employment history and that he was dispatched to the bar at 12:19 a.m.—was as

follows:

      Q. And why were you dispatched there?

      A. In reference to a fight.

      Q. And did you respond to that?


                                          2
A. I did.

Q. What did you know about that fight before you got to that
location?

A. The details stated several people were fighting out front in front
of the bar.

Q. And when you got there did you see several people outside?

A. Yeah. There were several.

Q. And did you make contact with anyone?

A. Yes, the—I believe it was the person who called the police.
There was a vehicle that was damaged there. He was the owner of
the vehicle that was damaged.

Q. Okay. And did you see the damaged vehicle there?

A. I did.

Q. And did you speak to that person?

A. Yes.

Q. And do you know who that person was?

A. I have it written down here.

Q. So you—you do have it written down?

A. Yes.

Q. So that person was identified to you?

A. Right.

Q. And what did—what did that person say to you?




                                  3
A. He pointed at a vehicle, which was parked across the street and
pointed at it and said, ―There they are right there. There they are,
there they are.‖

Q. When you say across the street, where was that vehicle parked?

A. Directly across from the [] bar on the east side of the roadway,
facing northbound.

Q. Okay. And so is this—is this in the Stockyards?

A. It is.

Q. And is that—was that car parked in the street or in the parking
lot?

A. It was in the street.

       ....

Q. Okay. So the witness said, ―There they are,‖ and what did you
do?

A. I—I was on foot at this point. I walked over to the vehicle as it
started moving northbound. At that point I stopped it.

Q. How did you stop it?

A. Ordered the driver to stop the vehicle. I yelled at her.

Q. Why did you do that?

A. Because I believed that they—at that point they were involved in
an offense.

Q. And which offense do you believe they were involved in?

A. An assault, criminal mischief, or both.




                                   4
The trial court granted Appellee‘s motion to suppress and, upon request by the

State, issued findings of fact and conclusions of law.1

                              III. Standard of Review

      In review of a trial court‘s ruling on a motion to suppress, we apply an

abuse of discretion standard and overturn the trial court‘s ruling only if it is

outside the zone of reasonable disagreement. Martinez v. State, Nos. PD-1238-

10, PD-1239-10, 2011 WL 2555712, at *2 (Tex. Crim. App. June 29, 2011). 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). 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 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. We apply a

bifurcated standard of review, giving almost total deference to a trial court‘s

determination of historic facts and mixed questions of law and fact that rely upon

the credibility of a witness and applying a de novo standard of review to pure

      1
       The trial court‘s findings of fact and conclusions of law are attached to this
opinion.


                                          5
questions of law and mixed questions that do not depend on credibility

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

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Estrada v.

State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d

644, 652–53 (Tex. Crim. App. 2002).

          IV. Reasonable Suspicion for an Investigative Detention

                                   A. The Law

      To suppress evidence on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). A defendant satisfies this burden by establishing that a search

or seizure occurred without a warrant. Id. Once the defendant has made this

showing, the burden of proof shifts to the State, which is required to establish

that the seizure was conducted pursuant to a warrant or was reasonable. Id.

      A temporary or investigative detention is a seizure. Francis v. State, 922

S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838

(Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d). An investigative detention

occurs when an individual is encountered by a police officer, yields to the officer‘s

display of authority, and is temporarily detained for purposes of an investigation.

Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Because an

investigative detention is a seizure, reasonable suspicion must be shown by the




                                         6
officer to justify the seizure. State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim.

App. 2000).

      An officer conducts a lawful temporary detention when he has reasonable

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

492. ―‗[T]he police officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.‘‖ Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App.

1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). The

articulable 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 a crime. Martinez, 2011 WL 2555712, at *2. Articulable facts must

amount to more than a mere inarticulate hunch, suspicion, or good faith

suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex.

Crim. App. 2010).

      In deciding whether reasonable suspicion existed, we look at the facts

available to the officer at the time of the detention. Id. Whether the officer‘s

suspicion to believe that an individual is violating the law is reasonable is

evaluated based on ―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.‖ Ford, 158 S.W.3d at 492. We are to take into account the

totality of the circumstances in order to determine whether reasonable suspicion

existed for the stop. Martinez, 2011 WL 2555712, at *2.


                                        7
      The totality of the circumstances includes both the content of the

information possessed by the police and its degree of reliability. Alabama v.

White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990); Martinez, 2011 WL

2555712, at *2; Blevins v. State, 74 S.W.3d 125, 130–31 (Tex. App.—Fort Worth

2002, pet. ref‘d). In determining whether information possessed by police rises

to the level of reasonable suspicion, the quality of the information possessed is

weighed against the quantity of information possessed. See Rojas v. State, 797

S.W.2d 41, 43 (Tex. Crim. App. 1990) (balancing quality of information against

quantity of information in the probable cause context); Blevins, 74 S.W.3d at 130.

That is, a weakness in the quality of the information possessed may be

overcome by the requisite quantity of corroborating facts demonstrating the

reliability of the information.   See Smith v. State, 58 S.W.3d 784, 790 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref‘d) (balancing quality of information

against quantity of information in the investigative stop context). Conversely,

when the reliability of the information is increased, less corroboration is

necessary. See Martinez, 2011 WL 2555712, at *2; State v. Sailo, 910 S.W.2d

184, 188 (Tex. App.—Fort Worth 1995, pet. ref‘d).




                                         8
                 B. Application of the Law to the Present Facts

      The State raises six points in this appeal; each point alleges that the trial

court erred by granting Appellee‘s motion to suppress.2 The State argues the six

points together in its brief, and we likewise address them together in this opinion.

      The State stipulated that Officer Bradford‘s investigative detention of

Appellee was made without a warrant. Thus, the burden of proof shifted to the

State to produce evidence that Officer Bradford‘s seizure of Appellee was

reasonable; that is, that Officer Bradford possessed reasonable suspicion to

believe that Appellee was violating the law.         See Ford, 158 S.W.3d at 492.

Officer Bradford was the only witness to testify at the suppression hearing, and

no exhibits were admitted into evidence, so we examine Officer Bradford‘s

testimony to determine whether the State elicited from him specific and

articulable facts that reasonably warranted his investigative detention of

Appellee. See id.; Davis, 947 S.W.2d at 242. In doing so, we give almost total

deference to the trial court‘s determination of historic facts and mixed questions




      2
        The State‘s points allege that the trial court erred by granting Appellee‘s
motion to suppress because (1) the trial court erroneously determined that
Officer Bradford did not possess reasonable suspicion for an investigative stop;
(2) the trial court‘s ruling runs afoul of Terry v. Ohio; (3) the trial court‘s ruling
runs afoul of Texas Court of Criminal Appeals‘s case law, including Derichsweiler
v. State; (4) the trial court‘s ruling violates the Fourth Amendment; (5) the trial
court‘s ruling violates article I, section 9 of the Texas constitution; and (6) the trial
court‘s ruling was erroneous because Officer Bradford‘s decision to stop
Appellee was objectively reasonable based on the totality of the circumstances.


                                           9
of law and fact that rely upon Officer Bradford‘s credibility. See Martinez, 2011

WL 2555712, at *2.

      The facts known to Officer Bradford when he initiated the warrantless

seizure of Appellee—at least the facts that are set forth in the record before us—

were that (1) someone had called the police to report people fighting in front of a

bar on the north side of Fort Worth; (2) Officer Bradford was dispatched to the

scene at 12:19 a.m.; (3) people were standing in front of the bar when he arrived;

(4) he spoke to a person whom he believed was the person who had called the

police; (5) that person had a damaged vehicle; and (6) that person pointed to a

vehicle parked on the street across from the bar and said, ―There they are right

there. There they are, there they are.‖ As the vehicle was driving away, Officer

Bradford initiated a temporary investigative detention by yelling at the driver,

Appellee, and ordering her to stop.

      The State points out that the person whom Officer Bradford believed had

called the police remained at the scene and spoke to Officer Bradford in a face-

to-face encounter and argues that the totality of the circumstances are sufficient

to support Officer Bradford‘s suspicion that he ―believed that they [the people in

the vehicle] -- at that point they were involved in an offense. . . . An assault,

criminal mischief, or both.‖ The record before us, however, does not indicate

what, if anything, Officer Bradford said to the person before the person said,

―There they are right there. There they are, there they are.‖ The record does not

indicate what, if anything, the person said to Officer Bradford before the person


                                        10
said, ―There they are right there. There they are, there they are.‖ In fact, the

record does not establish that the person who said, ―There they are right there.

There they are, there they are,‖ was the person who called the police. In finding

of fact number 4, the trial court found only that ―Officer Bradford made contact

with an unidentified person who Officer Bradford believed was the individual who

called the police.‖ [Emphasis added.] Thus, the trial court found only that Officer

Bradford believed this was the individual who called the police, not that it was in

fact the person who had called the police.       Officer Bradford never testified

concerning the name of the person at the scene or the name of the person who

had called the police.

      The record before us does not indicate when Officer Bradford arrived at

the bar. He was dispatched at 12:19 a.m., but the record does not indicate

whether he arrived ten minutes after he was dispatched or one hour after he was

dispatched. The record does not indicate how Officer Bradford determined that

the person who said, ―There they are right there. There they are, there they are,‖

was the owner of a damaged vehicle. The record does not indicate whether the

person‘s vehicle was already damaged when the person arrived at the bar, was

damaged at the bar, was damaged during the fighting, or was in an accident at or

near the bar before Officer Bradford arrived at the bar. Thus, in finding of fact

number 11, the trial court found that Officer Bradford ―believed that the occupants

of the vehicle were involved in either an assault, criminal mischief, or both.‖

[Emphasis added.]


                                        11
      In short, the record before us simply contains no facts to enable either the

trial court or this court to objectively evaluate either Officer Bradford‘s belief that

the person who said, ―There they are right there. There they are, there they are,‖

was the person who had called the police or his belief that Appellee was

―involved in an offense. . . [—a]n assault, criminal mischief, or both.‖ No facts

exist in the record to enable the trial court or this court to assess whether either

of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158

S.W.3d at 493. Without specific, articulable facts, a court has no means of

assessing whether an officer‘s opinion is objectively reasonable. Id. Without

specific, articuable facts, a detention cannot be subjected to the more detached,

neutral scrutiny of a judge who must evaluate the reasonableness of a particular

seizure in light of the particular circumstances. Id. And when such a stop is not

based on objective criteria, the risk of arbitrary and abusive police practices

exceeds tolerable limits.    Id.   Allowing a police officer‘s opinion to suffice in

specific facts‘ stead eviscerates Terry‘s reasonable suspicion protection. Id.

      The State nonetheless argues that because the person that Officer

Bradford believed had called the police remained at the scene and spoke to

Officer Bradford in a face-to-face encounter, Officer Bradford‘s beliefs were

reasonable. As set forth above, no facts exist in the record—as opposed to

possibly in Officer Bradford‘s mind—to substantiate Officer Bradford‘s belief that

this person was the person who had called the police. Assuming, however,

enhanced reliability of the statement, ―There they are right there. There they are,


                                          12
there they are,‖ based on the fact that the statement was made face-to-face

between a bystander and Officer Bradford, the substance of the information

provided—at least as elicited from Officer Bradford in the record before us—does

not indicate any unusual activity, does not connect Appellee to any unusual

activity, and does not indicate that any unusual activity is related to crime. See

Martinez, 2011 WL 2555712, at *2; accord Derichsweiler v. State, No. PD-0176-

10, 2011 WL 255299, at *6 (Tex. Crim. App. Jan. 26) (holding witnesses‘

statements to officer indicated unusual activity, connected Derichsweiler to the

unusual activity, and related to future criminal activity), cert. denied, 2011 WL

4530673 (2011).3 The trial court therefore concluded:

      The vague statement ‗there they are‘ made by an unidentified
      person did not provide Officer Bradford with any specific articulable
      facts to form reasonable suspicion that some activity out of the
      ordinary was occurring, or had occurred, or that the detainee had a

      3
        In Derichsweiler, the court of criminal appeals held that the witnesses‘ call
to police and face-to-face recitation to police at the scene that around 8 p.m., a
man had driven by them twice while they were in a McDonald‘s drive-through
lane, was ―looking straight at [them],‖ ―kind of grinning,‖ ―for between thirty
seconds to a minute,‖ had driven into the adjacent Wal-Mart parking lot, and was
engaging in similar behavior there constituted ―specific, articulable facts that,
combined with reasonable inferences to be derived from those facts, would lead
to the reasonable conclusion that the appellant was committing or soon would be
engaged in some type of criminal activity.‖ 2011 WL 255299, at *1, *5. Thus, in
Derichsweiler, witnesses reported to the police the behavior that they had
personally observed the defendant engage in. See id. at *1. Here, the person at
the scene either did not report to Officer Bradford what conduct he had observed
Appellee engage in, or the State simply failed to elicit this testimony from him.
Either way, this case is distinguishable from Derichsweiler because, unlike the
record in Derichsweiler, the record in this case contains no testimony by Officer
Bradford as to what conduct, if any, the person at the scene supposedly
observed Appellee engage in.


                                         13
      connection with the unusual activity. ―There they are‖ does not
      identify who ―they‖ are, nor what crime, if any, ―they‖ had committed.

Deferring as we must to the historical facts found by the trial court and mixed

questions of law and fact that rely upon the credibility of Officer Bradford, and

applying a de novo standard of review to the pure questions of law presented

and to the mixed questions not depending on Officer Bradford‘s credibility, we

cannot hold that the trial court acted outside the zone of reasonable

disagreement in granting Appellee‘s motion to suppress. See Martinez, 2011 WL

2555712, at *2. The State failed to meet its burden at the suppression hearing to

adduce facts proving under an objective standard, disregarding any subjective

intent of Officer Bradford, that Officer Bradford‘s suspicion or belief that Appellee

was violating the law was reasonable.           See Ford, 158 S.W.3d at 493.

Consequently, the trial court‘s suppression ruling comports with the requisites of

Terry v. Ohio, the Fourth Amendment, and article I, section 9 of the Texas

constitution. We overrule the State‘s six points.




                                         14
                                V. Conclusion

      Having overruled the State‘s points, we affirm the trial court‘s order

granting Appellee‘s motion to suppress.


                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

MCCOY, J. concurs without opinion.

PUBLISH

DELIVERED: November 3, 2011




                                      15
