                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00065-CR

CHARLES JAMES SNYDER                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
                   TRIAL COURT NO. 1295355

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            MEMORANDUM OPINION1 ON REHEARING
                                     ------------

                                  I. Introduction

      After reviewing the State’s motion for rehearing, we deny the motion. We

withdraw our October 2, 2014, opinion and judgment and substitute the following.

      In two issues, Appellant Charles James Snyder appeals the denial of his

motion to suppress and the sufficiency of the evidence to support his conviction




      1
      See Tex. R. App. P. 47.4.
for failure to identify, arguing that there was no lawful detention. We reverse the

trial court’s judgment and render a judgment of acquittal.

                                  II. Sufficiency

      In his second issue, which we will address first, Snyder argues that the

evidence is insufficient to support the jury’s verdict because the State failed to

prove that officers lawfully detained him.

A. Factual Background

      At trial, Sergeant Leach testified that on August 27, 2012, he was on his

daily patrol in a high-crime area at around 4:15 p.m. when he saw a bike tire in

some bushes. He drove past the area and saw someone lying on the ground in

the bushes; he made eye contact with that person and thought that the person

might be trying to hide from him. By the time Sergeant Leach turned his vehicle

around, he could not find the person he had seen in the bushes. A few minutes

later, Sergeant Leach stopped a man on a bicycle, questioned him, and then let

that man go. Sergeant Leach then drove back past the bushes—three additional

police officers in squad cars joined him—and found Snyder still in the bushes.

      Sergeant Leach exited his car with his gun drawn and told Snyder several

times to show him his hands. Officers warned Snyder that they would tase him

and shoot him if he tried to escape. When Sergeant Leach pulled Snyder from

the bushes, he detained him in handcuffs because Snyder would not show his

hands, and Sergeant Leach thought Snyder’s location and actions were

suspicious. Police found no weapons or any other illegal items on Snyder.

                                         2
      Sergeant Leach asked Snyder why he had been hiding.          When Snyder

responded that he had not been hiding, Sergeant Leach responded by asking,

“[W]hat games are you F-ing playing out here?” Snyder told him that he was not

playing games.    Sergeant Leach then asked Snyder what he was doing out

there, and Snyder replied, “I don’t know.” Sergeant Leach asked Snyder if he

was drunk or a pervert, and Snyder said, “Neither.”

      Sergeant Leach asked Snyder for his name, and Snyder replied, “Jim

Morgan.” Sergeant Leach asked Snyder his middle name; Snyder responded,

“James.” Sergeant Leach then asked Snyder for his date of birth, and Snyder

said, “January 7th, 1957.” Snyder gave the officers the same name, same date

of birth, and same social security number each time he was asked.           When

Sergeant Leach asked Snyder if he had a driver’s license or state identification,

Snyder told him that he had a Michigan identification. Sergeant Leach said that if

this had been true, he would have been able to find him in the computer system,

but when he checked for driver’s licenses under Jim Morgan in Michigan, he did

not get any returns.

      Sergeant Leach then asked Snyder if he had identification in any other

states. Snyder said Ohio, but when Sergeant Leach tried to find Jim Morgan in

the computer with an Ohio identification, he did not find anyone. Sergeant Leach

testified that because he could not locate a record of “Jim James Morgan” and

because “Jim” was a nickname for “James”, he suspected Snyder was being

dishonest and that he was giving false identifying information. Based on this

                                        3
information, he decided to take Snyder to the Tarrant County Jail to further

attempt to identify him.2

      Following the direct examination of Sergeant Leach, the jury watched

State’s Exhibit 1, the dashboard camera video-recording of the incident.3

B. Standard of Review and Applicable Law

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013).

      A person commits the offense of failure to identify if he intentionally gives a

false or fictitious name, residence address, or date of birth to a peace officer who

has lawfully arrested or detained him. Tex. Penal Code Ann. § 38.02(b)(1), (2)

(West 2011).


      2
       Using the Tarrant County jail’s iris scan, police identified Snyder in less
than a minute with his real name and real date of birth, which were not the ones
he had given to Sergeant Leach. The proper identification revealed that Snyder
had an active warrant for his arrest on a probation violation.
      3
       The dashboard camera video shows that when Sergeant Leach arrived at
the scene, two patrol cars were already parked on the street a few feet from
where they had detained Snyder. Once Sergeant Leach arrived, one officer
pulled his vehicle closer, and a few seconds later, another officer arrived, totaling
four patrol cars. The officers yelled at Snyder to show his hands, threatened to
tase him, and then threatened to shoot him in the side if he ran.

                                         4
C. Analysis

      Snyder argues that the evidence is insufficient for a rational trier of fact to

determine that Officer Leach had reasonable suspicion that Snyder had

committed any crime and therefore that the detention was lawful. Snyder asserts

that the only information known to Sergeant Leach before he detained Snyder

was that Snyder was on the side of the road under a bush.

      The State argues that concealment in a high-crime area is sufficient to

establish reasonable suspicion and           relies   on federal   cases   that are

distinguishable from the facts of this case.4 In the first case, United States v.

Sims, officers reported to a shots-fired call. 296 F.3d 284, 285 (4th Cir. 2002).

When they arrived at the scene, they had the suspect’s description, the

defendant was the only person there and matched the suspect’s description, and

the defendant was located not far from where the shots had been fired a few

minutes before the call. Id. at 287. The court stated that an officer could have

reasonably concluded that the defendant was evading the officers, stating that

the “[defendant’s] behavior, while apparently evasive, was well short of ‘headlong

flight’ and might not have given rise to reasonable suspicion in a different


      4
       The State equates flight with concealment, but while flight and hiding may
both indicate consciousness of guilt, see, e.g., Jordan v. State, Nos. 02-12-
00470-CR, 02-12-00471-CR, 02-12-00472-CR, 2014 WL 1663404, at *4 (Tex.
App.—Fort Worth Apr. 24, 2014, no pet.) (mem. op., not designated for
publication), Sergeant Leach’s subjective opinion that Snyder was trying to hide
is not dispositive, see Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.
2001).

                                         5
context.” Id. (emphasis added). In contrast, Sergeant Leach was not responding

to any calls and did not have a description of a suspect because he was not

looking for a suspect, and there were people other than Snyder in the area.

      In the second federal case, United States v. Peterson, plain-clothes

officers were patrolling a high-crime area when they saw three men standing on

the sidewalk. 100 F.3d 7, 9 (2d Cir. 1996). The men ducked behind a car when

they saw the officers.      Id.   This made the officers suspicious, and they

approached the men. Id. at 10. The court concluded that this was a consensual

encounter because two of the men left without hindrance; because the initial

encounter was consensual, the court did not determine whether the fact that the

men had ducked behind a car, by itself, was sufficient to support reasonable

suspicion.   Id. at 9–11.    In contrast, Sergeant Leach immediately detained

Snyder during their initial contact by pulling his weapon and ordering Snyder out

of the bushes. Cf. St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App.

2007) (stating that absent reasonable suspicion, officers may conduct only

consensual questioning).

      Sergeant Leach saw Snyder at 4:30 p.m. in a high-crime area where no

crime had been reported, and the basis for the stop by Sergeant Leach and three

other police officers was that Sergeant Leach thought Snyder was hiding from

him. See Domingo v. State, 82 S.W.3d 617, 618 (Tex. App.—Amarillo 2002, no

pet.) (holding no reasonable suspicion existed to support detention when

defendant’s conversation with officer occurred at 9:00 p.m. in high-crime area,

                                        6
defendant was part of a group that was lawfully socializing and drinking alcohol

without engaging in disruptive or illegal activities, and the officer was not

responding to or investigating reports of criminal activity);5 Scott v. State, 549

S.W.2d 170, 172–73 (Tex. Crim. App. 1976) (holding that no reasonable

suspicion existed when officer patrolling a high crime area was aware of recent

thefts and saw defendant drive a sparsely traveled street at 1:30 a.m. with

“sheeting material” in his car’s back seat). Compare Jones v. State, 926 S.W.2d

386, 389 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding no reasonable

suspicion existed when officers saw defendant’s truck emerge at 10:25 p.m. from

public park that had previously been used by people to smoke marijuana, have

sex, abandon stolen vehicles, and conceal minors drinking alcohol and that was

located across from some recently burglarized homes), with Balentine v. State,

71 S.W.3d 763, 766–69 (Tex. Crim. App. 2002) (concluding that officer reporting

to a shots-fired call had reasonable suspicion to detain defendant when it was

2:26 a.m. in a residential, low-traffic area, and the officer saw the defendant

across the street from the scene before defendant walked briskly away and

appeared nervous, constantly looking over his shoulder at the officer).

      5
        In Domingo, after the police officer detected a strong odor of alcohol on
the defendant’s breath, he detained him for further investigation. 82 S.W.3d at
619. Once detained, the defendant gave a false name and date of birth to the
officer. Id. When the officer was unable to locate the defendant in the system,
he suspected that he had been given a false name and took the defendant to the
police station for further identification. Id. At the police station, he confirmed that
the defendant had given him a false name and that the defendant had
outstanding warrants. Id.

                                          7
         Other than Snyder’s location in the bushes in a high-crime area, no other

facts support an inference that criminal activity had or would be occurring. See

Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010) (holding that “level of

criminal activity in an area . . . [is not] suspicious in and of [itself]”); see also

Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (stating that the

high-crime reputation of the area where the detainees were seen is not enough

by itself to support an investigative stop); cf. Williams v. State, No. 01-93-00874,

1994 WL 400292, at *2 (Tex. App.—Houston [1st Dist.] Aug. 4, 1994, pet. ref’d,

untimely filed) (not designated for publication) (holding that officer had

reasonable suspicion to detain appellant when driver of stolen car had fled scene

of accident, bystanders pointed out the direction in which he had fled, and officer

found appellant hiding under some bushes).

         The State asserts that because Snyder refused to show his hands, it was

reasonable for Officer Leach to detain him for officer safety by pulling his weapon

and handcuffing him. In support of this argument, the State cites Rodriguez v

State, No. 01-02-00174-CR, 2003 WL 360632 (Tex. App.—Houston [1st Dist.]

Feb. 20, 2003, pet. ref’d) (mem. op., not designated for publication). However,

there are some very important differences between the case cited by the State

and this case.

         In Rodriguez, two officers responded to a possible vehicle burglary. Id.

at *1.     As they approached the area, they spotted the defendant leaving the

area. Id. When officers approached the defendant to ask him some questions,

                                         8
the defendant placed his hands behind his back and began backing away from

the officers. Id. Officers asked to see the defendant’s hands three times; when

the defendant failed to comply after the third request, officers drew their weapons

and gave the order again. Id. The defendant refused again. Id. Officers then

approached the defendant with their weapons drawn and gave the order again;

the defendant complied, and officers conducted a pat-down but found no

weapons. Id. Officers did not handcuff the defendant, and they withdrew their

weapons once the defendant complied. Id. However, perhaps most importantly,

the court in Rodriguez determined that the officers’ interaction with the defendant

began as an encounter and therefore no reasonable suspicion was necessary.

Id.

      By contrast, here, the evidence shows that (1) the officers were not

responding to any call, (2) Snyder was not attempting to flee from the officers,

and (3) officers detained Snyder from the moment they exited their cars and saw

him; thus, the officers needed reasonable suspicion at the inception of the stop in

order for the detention to be lawful. See Terry v. Ohio, 392 U.S. 1, 21; 88 S. Ct.

1868, 1880 (explaining that for an officer’s initial action to be justified, the officer

must be able to “point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion”).

Snyder’s detention began the moment the three officers pulled their weapons;

therefore, it is at this point the officers needed reasonable suspicion.



                                           9
      An officer may use force as is reasonably necessary to effect the goal of

the stop: investigation, maintenance of the status quo, or officer safety. See

Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997); see also

Campbell v. State, 325 S.W.3d 223, 234 (Tex. App.—Fort Worth 2010, no pet.)

(holding that handcuffing a suspect does not always constitute an arrest). Here,

the degree of incapacitation was more than necessary to simply safeguard the

officers and assure the suspect’s presence during the period of investigation.

Compare State v. Moore, 25 S.W.3d 383, 387 (Tex. App.—Austin 2000, no pet.)

(holding that while officers had reasonable suspicion to investigate the

defendant, handcuffing transformed the detention into an arrest for which there

was no probable cause),6 with Mays v. State, 726 S.W.2d 937, 944 (Tex. Crim.

App. 1986) (holding that officer had reasonable suspicion to handcuff and detain

two men, on the grounds of officer safety, after he responded to a burglary call

alone and both men were larger than he and were suspected of burglary);

Chambers v. State, 397 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2013,

pet. ref’d) (explaining that while an officer used a weapon and handcuffs to detain

      6
         In Moore, two officers responded to a call at a convenience store at 10:10
p.m. in response to a reported forgery. 25 S.W.3d at 384. Officers found a
concealed handgun permit on the defendant and handcuffed him for “safety.” Id.
at 385. The court held that because forgery was not a crime commonly
associated with violence, officers were in a brightly lit store and not a dark street
or vacant lot, the defendant was compliant, officers did not find a weapon, and
the officers outnumbered the defendant two to one, “there [was] simply no
evidence that the officers had reason to fear for their safety or any other
justification for handcuffing [the defendant] while pursuing their investigation.” Id.
at 387.

                                         10
the defendant, the amount of force was reasonable under the circumstances:

(1) there were multiple suspects, (2) the officer’s partner was dealing with

another suspect, (3) it was after 2:00 a.m., and (4) they were in a high-crime area

where the officer had previously experienced several incidents involving

narcotics, weapons, and fighting, including one shooting).

      Although the area may have been a high-crime area, it was 4:30 in the

afternoon, there were no reports of criminal activity, and the officers

outnumbered Snyder four to one. Furthermore, after removed from the bushes

Snyder cooperated fully, and the officers found no weapons on Snyder.           Cf.

Salazar v. State, 805 S.W.2d 538, 539–40 (Tex. App.—Fort Worth 1991, pet.

ref’d) (holding that given the circumstances, officers had reasonable suspicion to

detain a defendant that appeared to be hiding from police in a car: (1) there was

a robbery in progress, (2) there were multiple suspects, (3) a suspect had shot at

an officer, (4) defendant was located near where the crime was taking place,

(5) defendant appeared to be reaching for something inside the car, and

(6) defendant tried to leave).

      Based on our review of the case law and the totality of the circumstances,

we conclude that there is no evidence of specific, articulable facts showing

reasonable suspicion to detain Snyder.       Therefore, there is no evidence from

which a rational jury could determine that Snyder’s detention was lawful. We




                                        11
sustain Snyder’s second issue. See St. George, 237 S.W.3d at 726; see also

Domingo, 82 S.W.3d at 618.7

                                III. Conclusion

      Because the evidence is insufficient to support Snyder’s guilt, we reverse

the trial court’s judgment and render a judgment of acquittal.8 See Tex. R. App.

P. 43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19, 24–25, 98 S. Ct. 2151,

2154–55 (1978); Burks v. United States, 437 U.S. 1, 16–18, 98 S. Ct. 2141,

2150–51 (1978); Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013).



                                                  /s/ Bob McCoy

                                                  BOB MCCOY
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

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

DELIVERED: November 20, 2014

      7
       As in Domingo, before he was taken to jail for identification, Snyder had
provided the same name, date of birth, and social security number each time
Sergeant Leach asked him for his identification. See 82 S.W.3d at 619.
Sergeant Leach testified that he thought Snyder was being dishonest about who
he was and took him to jail for identification because he could not locate “Jim
James Morgan” in the system, Jim and James were similar names, and Jim is a
nickname for James.
      8
       Because Snyder’s second issue affords him the greatest relief and is
dispositive of the appeal, we need not address the motion to suppress. See Tex.
R. App. P. 43.3, 47.1; Sinor v. State, 612 S.W.2d 591, 592 (Tex. Crim. App.
1981).

                                      12
