                   CASE NO. 06-15-00122-CR

                           IN THE                      FILED IN
                                                6th COURT OF APPEALS
                 SIXTH COURT OF APPEALS           TEXARKANA, TEXAS
                    TEXARKANA, TEXAS            12/7/2015 9:17:00 AM
_____________________________________________________________
                                                    DEBBIE AUTREY
                                                            Clerk
               DAVID SYLVESTER CHAMBERS
                                Appellant

                              VS.

                   THE STATE OF TEXAS
____________________________________________________________

        ON APPEAL FROM THE 272nd DISTRICT COURT
                  BRAZOS COUNTY, TEXAS
                 CAUSE NO. 13-02053-CRF-272
_____________________________________________________________

                       STATE’S BRIEF
_____________________________________________________________

                                    JARVIS PARSONS
                                    DISTRICT ATTORNEY
                                    BRAZOS COUNTY, TEXAS

                                    Maritza Sifuentez
                                    Assistant District Attorney
                                    State Bar No. 24082121

                                    300 E. 26th Street, Suite 310
                                    Bryan, Texas 77803
                                    (979) 361-4320
                                    (979) 361-4368 (Facsimile)
                                    msifuentez@brazoscountytx.gov
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                    David Chambers

Trial Counsel:                Shannon Flanigan
                              P.O. Box 482
                              Bryan, Texas 77806

Appellate Counsel:            Richard Wetzel
                              1411 West Ave Suite 100
                              Austin, TX 78701

THE STATE OF TEXAS:           Jarvis Parsons
                              District Attorney
                              300 E. 26th Street, Suite 310
                              Bryan, Texas 77803

Trial Counsel:                Jennifer Hebert
                              James Andrew Rogers
                              Assistant District Attorneys

Appellate Counsel:            Maritza Sifuentez
                              Assistant District Attorney

TRIAL COURT:                  Hon. Travis Bryan
                              272nd District Court
                              Brazos County, Texas




                                i
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................ i

TABLE OF CONTENTS .............................................................................................. ii

INDEX OF AUTHORITIES ........................................................................................ iii

STATEMENT REGARDING ORAL ARGUMENT .................................................. 1

STATEMENT OF THE CASE ..................................................................................... 2

STATEMENT OF FACTS ....................................................................................... 2-33

SUMMARY OF THE ARGUMENT .................................................................... 33-35

STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR ONE ................ 35

         The trial court committed no error when it permitted the State to
         amend Appellant’s indictment after the jury was sworn in
         because the State amended an enhancement paragraph-not the
         language of the charged offense, and the State already provided
         sufficient notice of the prior conviction used for enhancement.

STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR TWO…….......47

         The trial court committed no error when it denied Appellant’s
         Motion to Suppress Evidence, where he alleged there was no
         corroboration of the witnesses tip. The record shows that: (1) law
         enforcement corroborated the witnesses observations and (2) the
         witnesses provided an inherently reliable tip.

STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR THREE……...60

         Appellant’s judgment of conviction incorrectly reflects the degree
         of offense as a second-degree felony instead of a state-jail felony;
         the judgment should be reformed.

PRAYER ...................................................................................................................... 63



                                                               ii
CERTIFICATE OF SERVICE.................................................................................... 63

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 ......................... 64




                                                     iii
                                      INDEX OF AUTHORITIES

STATUTES

TEX. CODE CRIM PROC. § art. 28.10(b) ............................................33, 35, 36, 41, 42

TEX. R. APP. P. 44.2(b) ............................................................................................. 45

TEX. PENAL CODE § 31.04(e)(4)(a) ....................................................................60, 61

TEX. PENAL CODE §12.425(b) .................................................................................. 61

CASES

Barnes v. State, no. 14-05-00144-CR, 2006 WL 2548186 (Tex. App.—Houston
[14th Dist.] Sept. 5, 2006, pet. ref'd) (not designated for publication)
………………………………………………………………………………………………………………………………40, 42, 44, 45, 46

Brother v. State, 85 S.W.3d 377 (Tex. App.—Fort Worth, 2002, pet. ref’d)
………………………………………………………………………………………………………………………………………48, 53, 57-58

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) ……………………………………………….38

Bryant v. State, no. 14-99-01373-CR, 2002 WL 27573 (Tex. App.—Houston [14th
Dist.] Jan. 10, 2002, pet. ref'd) (not designated for publication.)…..41, 45, 46

Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) …………52-53, 55-57

Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011) ……………………….…………...…60, 61

King v. State, 935 S.W.2d 266 (Tex. Crim. App. 1997) …………………………………………………45

Martinez v. State, 261 S.W.3d 773 (Tex. App.—Amarillo 2008, pet. ref’d.)
…………………………………………………………………………………………………………………………………………….…57, 60

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ………………………………………45, 45

Mount v. State, 217 S.W.3d 716 (Tex. Crim. App. 2007…………………………………………47, 53

Newton v. State, 301 S.W.3d 315 (Tex. App. —Waco, 2009, pet. ref’d) …………………47

                                                          iv
Romo v. State, no. 10-14-00036-CR, 2014 WL 6609050 (Tex. App.—Waco Nov.
20, 2014, no pet.) ………………………………………………………………………………………………………………..61-62

Sample v. State, 405 S.W.3d 295 (Tex. App.—Fort Worth 2013, pet. ref’d)…………43




                                      v
                    CASE NO. CASE NO. 06-15-00122-CR

                 IN THE SIXTH COURT OF APPEALS
                       TEXARKANA, TEXAS
_________________________________________________________________

                         DAVID SYLVESTER CHAMBERS
                                         Appellant

                                       VS.

                      THE STATE OF TEXAS
_________________________________________________________________

           ON APPEAL FROM THE 272nd DISTRICT COURT
                     BRAZOS COUNTY, TEXAS
                   CAUSE NO. 13-02053-CRF-272
_________________________________________________________________

                         STATE’S BRIEF
_________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through its District Attorney, and

files this brief in response to the points of error alleged by Appellant, and would

respectfully show the Court the following:

             STATEMENT REGARDING ORAL ARGUMENT

      Appellant did not request oral argument. The State, likewise, does not

request oral argument.




                                         1
                            STATEMENT OF THE CASE

       Appellant, David Silvester Chambers, was charged by indictment with the

state jail felony offense: Theft of Property $1,500-$20,000 enhanced by

punishment to a second degree felony.1 (CR 5). On April 6, 2015, Appellant pled

“Not Guilty” to the jury for the offense of Theft of Property $1,500-$20,000. (6

RR 185). The jury found Appellant guilty of Theft of Property $1,500-$20,000 as

charged in the indictment. (CR 32; 7 RR 88). Appellant elected for the trial court

to assess punishment. (CR 17). Appellant also pled “Not True” to the

enhancement paragraphs. (CR 35; 8 RR 7). The trial court found both

enhancement paragraphs true, and assessed punishment at 15 years in the

institutional division of the Texas Department of Criminal Justice. (CR 36; 8 RR

84). Notice of Appeal was filed on June 12, 2015. (CR 51).

                              STATEMENT OF FACTS

Pre-trial suppression hearing

       Officer James Hauke (Bryan Police Department), a nineteen-year law

enforcement veteran, was assigned to the Canine (K9) Unit that supports patrol.

(6 RR 155-56, 165). On March 9, 2013 at around 12:50 a.m., Hauke responded to

a 911 dispatch indicating that witnesses were in their vehicle and following a

1
       Appellant’s state jail felony was enhanced to a second degree felony by two prior
felony convictions: (1) Cause No. 35042, in the 212th District Court of Galveston County,
Texas for the felony offense of Burglary of Habitation on August 4, 1978; and (2) Cause No.
807868, in the 228th District Court of Harris County, Texas for the felony offense of Unlawful
Possession of a Firearm by a Felon on August 25, 1999. (CR 5).

                                              2
reckless driver who was in possession of a trailer that was possibly stolen. (6 RR

156, 160-61); See State’s Pre-trial Exhibit 2: CAD notes from 911 dispatch. 911

dispatch and the CAD computer system apprised Hauke of the witnesses’

ongoing locations and that the suspect was trying to escape by driving recklessly

down streets and the highway. (6 RR 156, 157, 159, 160-61); See State’s Pre-trial

Exhibit 2: CAD notes from 911 dispatch. 911 dispatch informed officers that the

witnesses described their vehicle as the maroon Dodge Charger, and the suspect

was driving a black dually pickup with the white cargo trailer attached. (6 RR

160-61).

      While the witnesses relayed information, 911 dispatch then relayed the

witnesses’ information to law enforcement using the CAD computer system and

“live” broadcast. (6 RR 157-58, 166-67). Hauke stated that he received the CAD

notes, the 911 call, and dash-cam video from his patrol vehicle. (6 RR 157-59).

The state’s exhibits were admitted. (6 RR 159). The CAD notes reflected the

information that 911 dispatch relayed to Officer Hauke. (6 RR 157).

       Hauke used the information relayed from dispatch to locate the witness’s

maroon Dodge Charger on the highway. (6 RR 161-162). Officer Hauke began

pursuing the suspect around the time the suspect was leaving the city of Bryan

and entering the city of College Station. (6 RR 161). Hauke testified that his

dash-cam-video showed the witness’s maroon Charger that was following the



                                        3
suspect’s black dually truck with the cargo trailer attached. (6 RR 164). Hauke

caught up with the witness’s maroon Dodge Charger, passed the Charger, and

then drove in behind the suspect with the stolen cargo trailer. (6 RR 159,161).

Appellant exited Highway 6 at the Barron Road exit in College Station. (6 RR

161, 172). Officer Hauke followed. (6 RR 161). Hauke tried to read the paper

license tag on the stolen trailer while he followed Appellant. (6 RR 167). All

Hauke could make out was “delta, one, three” (D13), so he was not able to

request that 911 dispatch determine the registered owner of the cargo trailer

before he stopped the dually truck. (6 RR 167-68). Hauke also could not see the

license plate on the dually truck. (6 RR 168).

      Hauke waited for a College Station Police unit to arrive as backup before

initiating his stop on Appellant’s vehicle. (6 RR 161). Felony-stops are usually

carried out using two officers since the suspects could be armed and dangerous.

(6 RR 168-69). When Hauke made the traffic stop, Appellant decided to exit his

vehicle. (6 RR 162,173). Hauke identified Appellant, in court, as the person that

was driving the black dually truck and was pulling the stolen cargo trailer. (6 RR

161, 162). At that point, Hauke instructed Appellant to “turn and walk backwards

towards me.” (6 RR 162). Appellant also reached for his pocket, though Hauke

already asked him to put his hands on the cab, which concerned Hauk. (6 RR

173). Hauke never drew his weapon on Appellant. (6 RR 173). A College Station



                                         4
officer then took Appellant and placed him in the back of a patrol car while 911

Dispatch determine who was the registered owner of the trailer. (6 RR 162-63).

The owner was Nathan Kleinman with Woodbolt Industries located in downtown

Bryan. (6 RR 163).

      Officer Hauke admitted that he did not personally observe Appellant’s

reckless driving. (6 RR 174). Hauke testified that his reasonable suspicion for

stopping Appellant was based on the information regarding the offense in Bryan

and what the witnesses reported to dispatch. (6 RR 172,175). Hauke had

witnesses that were feeding 911 dispatch information. (6 RR 171-172). Dispatch

then relayed that information to the officers. (6 RR 166). Hauke listened to the

911 dispatcher: “live. I was there live when it happened…[y]es, I did not hear the

caller. I heard the dispatcher, what they were telling me.” (6 RR 166).

      When Hauke heard that Appellant was driving in a crazy manner away

from witnesses who were following him, Hauke suspected that it was because

Appellant was attempting to “get away” with stolen property. (6 RR 160). Hauke

also believed that crimes occur more frequently after midnight so that suspects

can use the cover of darkness as a shield. (6 RR 160). Hauke testified that: “my

suspicion was it’s basically one o’clock in the morning. He’s [Appellant] the only

black dually and white trailer with a witness following behind him.” (6 RR 175).




                                         5
      Before initiating the stop, Hauke verified that there was a Charger

following behind Appellant. (6 RR 175). After the traffic stop, Hauke also spoke

to the witnesses who made the 911 call. (6 RR 163, 177). The witnesses were

waiting on stand-by at a nearby Harley Davidson parking lot. (6 RR 163, 177).

The witnesses gave Hauke several forms of identifying information: driver’s

licenses, names, and “anything [Officer Hauke] could think to ask for.” (6 RR

163-164). The witnesses also provided written statements. (6 RR 164).

      On cross-examination, Hauke stated that, had the witnesses’ 911 report

been a false report, prank, or that somebody had tricked Appellant into taking a

trailer that did not belong to him, Hauke would have to investigate first in order

to make that determination. (6 RR 177).

      Officer Hauke authenticated the audio of the 911 call from the reporting

witnesses, and it was admitted as State’s Pre-Trial Exhibit No. 3. (6 RR 158); see

State’s Pre-trial Exhibit No. 3: Audio of 911 Call. State’s Pre-Trial Exhibit No. 3

was played in its entirety, in open court (6 RR 164); the following is a

transcription of State’s Pre-Trial Exhibit No. 3:


      911 OPERATOR: 911 what’s the address of the emergency

      WITNESS 1: Uh, we’re just following somebody that’s uh that’s uh
      has a stolen trailer, we believe

      911 OPERATOR: that you believe has a stolen trailer?



                                          6
WITNESS 1: yeah, they stole it off of uh

WITNESS 2: they are over here by East Park

WITNESS 1: they’re over here by East Park

911 OPERATOR: Okay, who’s trailer is it?

WITNESS 2: it’s called Manning Way

WITNESS 1: It’s called Manning Way

911 OPERATOR: okay, Manning Way and what’s the other street

WITNESS 1: What’s that other street?

WITNESS 2: Over here by East Park

MALE WITNESS: Over here by East Park

WITNESS 2: We went the other direction because they know we are
following them...I turned around know we are following them

WITNESS 1: We went the other direction they know we are
following us..they know we are following them.
                                          [Time Stamp: 00:00:39]

911 OPERATOR: Okay, what’s, I need an intersection that you guys
are at?

WITNESS 2: Moss and Manning

WITNESS 1: We are at Moss and Manning

WITNESS 2: they got to come back out this way towards us

911 OPERATOR: Okay, why do yall think it was stolen?
                                      [Time Stamp: 00:00:50]

WITNESS 2: We were sitting here in the yard

                                 7
WITNESS 1: We were sitting in the yard…I’m turning
around….and we were just sitting in the yard and we saw them hook
it up to the trailer

WITNESS 2: And they looked suspicious

WITNESS 1: they looked suspicious, and its 12 o’clock, almost was
one o’clock at night, and

WITNESS 2: the way they drove              [Time Stamp: 00:01:06]

WITNESS 1: the way they drove, they’re driving real crazy

WITNESS 2: hitting curves

WITNESS 1: hitting curves and everything

911 OPERATOR: Okay, where are, where is it at now?
                                     [Time Stamp: 00:01:12]

WITNESS 2: They turned off of uh Manning up into East Park but
there’s only one way out and they haven’t came back out yet

WITNESS 1: They haven’t came back out yet, we’re at Moss

WITNESS 2: and Manning Way

911 OPERATOR: is East Park a mobile home park? Or what is that?

WITNESS 2: No that’s Eastside Park off MLK

WITNESS 1: that’s Eastside Park by MLK, MLK

WITNESS 2: pull over to the right

WITNESS 1: Oh there they are

WITNESS 2: they are unhooking it



                                8
911 OPERATOR: hold on real quick, hold on for me

WITNESS 2: They are trying to turn it around now

WITNESS 1: They just saw me…

WITNESS 2:…stop its okay….

WITNESS 1: they saw me.

WITNESS 2: it’s okay that they saw you

WITNESS 1: I’m gonna pull over to the side of the road

WITNESS 2: You gotta make sure you can see them

WITNESS 1: I see them..I see the trailer   [Time Stamp: 00:01:56]

WITNESS 2: they’re on Manning Way

911 OPERATOR: okay, hold on for me

WITNESS 2: they turned it around, they’re leaving again

WITNESS 1: ugh oh here they come

WITNESS 2: okay, stop backing up

WITNESS 1: why?

911 OPERATOR: (speaking to someone else)

WITNESS 2: they are getting back on MLK

WITNESS 1: they’re getting back on MLK

911 OPERATOR: Now they’re on MLK?

WITNESS 1: yes



                                 9
WITNESS 2: We are gonna see which way they go

WITNESS 1: We are gonna see which way they go

911 OPERATOR: What kind of vehicle is it?

WITNESS 1: It’s a Dodge dually, um a Chevrolet dually

911 OPERATOR: Is the trailer still hooked up?

WITNESS 1: Yeah trailer is still hooked up, he got it, he still gots it

WITNESS 2: They haven’t turned on MLK yet

WITNESS 1: They haven’t turned MLK, they’re still on uh Dumas

WITNESS 2: Douglass

WITNESS 1: Douglass, no- D-U-M-A-S-S

911 OPERATOR: okay, hold on for me

WITNESS 1: Dumas and MLK, they’re turning

WITNESS 2: they’re going again

WITNESS 1: they’re going again

911 OPERATOR: they are going where?

WITNESS 1: they are going, hold on. Hold on. They’re just, they’re
staying still.

911 OPERATOR: at the entrance to MLK?

WITNESS 2: they’re going left down uh MLK, they’re going back
to the highway 6, back to highway 6

WITNESS 1: turn right to see which they are going



                                  10
WITNESS 2: they are going back to highway 6

911 OPERATOR: towards highway 6?

WITNESS 2: yes

WITNESS 1: yes, to highway 6, MLK to highway 6 right now

911 OPERATOR: okay, are they over the bridge or what?

WITNESS 1: yep they are about to hit the bridge, they’re at the
stoplight, they’re at the stoplight

911 OPERATOR: they are at the bridge?

WITNESS 1: yeah they’re at the bridge right now

WITNESS 2: we are trying to keep

WITNESS 1: we are trying to see if they’re going straight or turn

911 OPERATOR: okay, what kind of vehicle did you say? What
color dually?

WITNESS 1: it’s a black dually- they are sitting at the red light right
now, oh they are turning right, they’re turning right
                                              [Time            Stamp:
00:03:35]

WITNESS 1: They’re turning right. They are going towards the old
DPS office. I’m trying to get back up to them right now. I’m in the
red Dodge charger, so if they see me uh speeding-

911 OPERATOR: okay, are they are on the feeder, or are they on
the highway?

WITNESS 1: they are on the feeder road right now

WITNESS 2: coming to the exit


                                  11
WITNESS 1: We are trying to see if they are exiting off

911 OPERATOR: Now they are on the feeder road in front of
the DPS office, old DPS office?

WITNESS 1: uh yeah.

WITNESS 2: No, they got on the highway

WITNESS 1: No, they got on the highway

911 OPERATOR: On the freeway? On the freeway?

WITNESS 1: They’re on the highway. They’re on Highway 6 in
front of the old DPS office, um, they’re headed towards, um
College Station right now. They’ve got the white boxed-in trailer
with black Chevrolet dually truck         [Time          Stamp:
00:04:30]

WITNESS 2: it’s four door

WITNESS 1: it looks four door, but we really can’t make sure

911 OPERATOR: okay, can you give me a LP on that truck, or yall
not close enough?                     [Time           Stamp:
00:04:38]

WITNESS 1: uh, we have the….whats the

WITNESS 2: the trailer vin number was like 813666H- I believe

WITNESS 1: yeah

911 OPERATOR: that’s the VIN number?

WITNESS 2: no, that’s the license plate number on the trailer

WITNESS 1: on the trailer                  [Time Stamp: 00:04:51]

911 OPERATOR: okay, where is the vehicle at now?

                                 12
WITNESS 1: okay, we are going underneath um, William Joel
Bryan, the bridge on Highway 6

WITNESS 2: okay, we’re off the…they just did a u-turn off
Manning Way back over the bridge

WITNESS 1: they tried to loose us

911 OPERATOR: okay, well where

WITNESS 1: yeah they are, they are going faster now

911 OPERATOR: stay on the phone with me. Are they heading into
College Station?

WITNESS 1: Yes. Heading into College Station right now. Um, I
don’t know if they are going to exit Briarcrest or not. I’m about
to see. We’re about to hit Briarcrest.

WITNESS 2: they are staying on the bypass

WITNESS 1: they are staying on the bypass

911 OPERATOR: We got a stolen trailer heading to another
town. Okay, are yall still on the highway?

WITNESS 1: yeah, we’re still on the highway

911 OPERATOR: what intersection yall coming up to?

WITNESS 1: uh, we are going underneath the bridge of uh, no that’s
not University..Briarcrest, Briarcrest

911 OPERATOR: passing Briacrest?

WITNESS 1: yeah, yeah passing Briarcrest right now, going
underneath the bridge…and like the trailer lights are flickering on
and off so you’ll be able to see it. Alright, we are passing Lowe’s
                                            [Time Stamp 00:06:03]

                                13
911 OPERATOR: passing Lowe’s right now?

WITNESS 1: We’re passing Lowe’s we are still on the highway
                                        [Time Stamp 6:15]

WITNESS 2: they did a u-turn on….

WITNESS 1: We’re passing the Dodge dealership on highway 6 and

911 OPERATOR: okay, yall still on 6?

WITNESS 1: yep, still on 6. Passing Dodge, passing the Furniture
Row….I don’t see no cops here

WITNESS 2: they hit a curb

WITNESS 1: they hit a curb and everything driving crazy
                                         [Time Stamp: 00:06:54]

911 OPERATOR: okay, just let me know when they exit, if they do

WITNESS 1: okay.

911 OPERATOR: what are yall gonna be in?

WITNESS 1: uh, I’m in a maroon Dodge Charger, 07 Dodge
Charger, tinted windows. Alright still going straight it did not exit,
did not exit University, going underneath University bridge on
highway 6                                      [Time Stamp: 7:08]

911 OPERATOR: hey is it a closed-in trailer or a, what kind of
trailer is it?

WITNESS 1: closed-in trailer, box trailer

WITNESS 2: box trailer

911 OPERATOR: a box trailer



                                 14
WITNESS 1: all white

911 OPERATOR: all white

WITNESS 1: all white, boxed-in trailer

911 OPERATOR: okay, alright just,

WITNESS 1: they’re still going

911 OPERATOR: Yeah, where yall at now, sir?

WITNESS 1: Um, we’re passing Scott and White

911 OPERATOR: Passing Scott and White?

WITNESS 1: Yeah.

WITNESS 2: coming up on Harvey

WITNESS 1: coming up on Harvey            [Time Stamp: 00:07:59]

911 OPERATOR: Tell me, let me know if they exit Harvey

WITNESS 1: alright….looks like they are staying on….they are
starting to slow down they see us

911 OPERATOR: I don’t want yall to put yall’s selves in harm’s
way, alright?

WITNESS 1: nah, I’m not, I’m I’m trying not to

911 OPERATOR: I don’t want you to stay up right behind them,
they slam the breaks and yall have to hit the back of them

WITNESS 1: yeah I’m staying way away from them now. I think
they see us. Alright we are going over the bridge of uh Harvey Road

911 OPERATOR: They’re still on 6 past Harvey



                                 15
WITNESS 1: we’re coming up on Southwest Parkway exit, and
we don’t know if they’re gonna exit yet

WITNESS 2: They’re swerving a little bit

WITNESS 1: they’re swerving. Man I gotta pee.

911 OPERATOR: we’re trying to get the whole force out there right
now.                                   [Time Stamp: 00:09:00]

WITNESS 1: alright, alright we are going underneath the uh
Southwest Parkway bridge right now, bout to. They’re slowing
down.

WITNESS 2: They know they’re being followed now

WITNESS 1: They know they’re being followed

WITNESS 2: I hope we’re not trippin’. We’re passing underneath uh
Southwest Parkway bridge

WITNESS 1: you know its stolen, cause they’re driving crazy
                                    [Time Stamp: 00:09:24]

911 OPERATOR: I think we had the owner call in, and call and
tell us it was stolen also         [Time Stamp: 00:09:26]

WITNESS 1: Really? Huh. That’s crazy

911 OPERATOR: just keep me updated. Yall are still on
Highway 6?

WITNESS 1: yeah still on Highway 6, we’re passing Central Park,
the Beachy Park

911 OPERATOR: let me know if they take Emerald Forest

WITNESS 1: alright

WITNESS 2: They already called and said it was stolen?

                               16
WITNESS 1: Yeah, they already called and said it was stolen.

WITNESS 2: we were watching them

WITNESS 1: We were watching, we watched them hook up to
the trailer and everything

911 OPERATOR: okay, can I get your name sir?
                                     [Time Stamp:00:10:13]

WITNESS 1: Mario. No they’re not going on Emerald Parkway,
they’re keep going straight. They’re heading towards Navasota. Uh,
Mario Thompson.                            [Time Stamp: 00:10:15]

911 OPERATOR: Hold on real quick, hold on.

WITNESS 1: Man, I gotta pee like a racehorse.

911 OPERATOR: Okay, Mario, what’s your last name?

WITNESS 1: Thompson. T-H-O-M-P-S-O-N

911 OPERATOR: And, a call back number?

WITNESS 1: 979-676-3969. They did not exit the Texas and
Deacon exit they keep going straight [Time Stamp: 00:10:48]

911 OPERATOR: okay

WITNESS 1: they’re at Rock Prairie exit

911 OPERATOR: Are they taking?

WITNESS 1: no, uh, no. They’re not taking Rock Prairie. They’re
not taking Rock Prairie. Uh, here comes a cop, I believe. He’s
coming up pretty fast

911 OPERATOR: can you put your flashers on and let him know
                                    [Time Stamp: 00:11:08]

                                17
WITNESS 2: they got him

WITNESS 1: ught oh. Canine unit. Canine unit.

911 OPERATOR: put your flashers on

WITNESS 1: nah, he came up he’s behind the trailer right now

WITNESS 2: he uh

WITNESS 1: it flew up on him

WITNESS 2: he goes like

911 OPERATOR: okay

WITNESS 1: he’s in the Expedition

WITNESS 2: still on Highway 6

911 OPERATOR: okay. yeah that’s gonna be uh, gonna be, it’s a K-
9 unit, but

WITNESS 1: want my flasher’s on? Do I need to keep my
flashers on?

911 OPERATOR: yeah, you can go ahead and back off a little bit
from the officer

WITNESS 1: okay

911 OPERATOR: the officers on him right now

WITNESS 1: okay, I was just wondering if they need anything
from us, I don’t want them to see us though

911 OPERATOR: Well, I’m going to uh,

WITNESS 1: they’re coming up on Barron Road

                                18
911 OPERATOR: okay, is it okay if the officer contacts you?

WITNESS 1: yeah.

911 OPERATOR: okay, I’ll let him know that he can contact you,
alright?

WITNESS 1: We live right there where it was stolen at, right
there at that, across the street

911 OPERATOR: Do you still have your flashers on?

WITNESS 1: yes. I have my flashers on.

WITNESS 2: they’re exiting, they’re turning

WITNESS 1: oh they’re turning, they’re turning

WITNESS 2: They’re pulling them over now, they turned on their
lights

WITNESS 1: Now, they’re pulling them over

911 OPERATOR: yeah, they got them and pulled them over. Okay,
hold on real quick for me

WITNESS 1: okay

WITNESS 2: we’re right here on…

911 OPERATOR: hey (inaudible) do they need to pull over on the
shoulder?

911 OPERATOR: is it okay if you guys can pull over to the side of
the road on the shoulder, a little bit behind the K-9 unit, not directly
behind them but about 100 feet or so

WITNESS 1: uh, I’m over here at this uh the cleaner’s I passed
the street up where they were

                                  19
911 OPERATOR: you passed them up?
                                          [Time Stamp: 00:12:52]

WITNESS 1: yeah, I’m uh on the feeder road

911 OPERATOR: okay, are you in front of them then?

WITNESS 1: no, I’m uh, they went down uh what is it Dartmouth?
Not Dartmouth, but uh

911 OPERATOR: is there anyway you can get back over there?
                                   [Time Stamp: 00:13:03]

WITNESS 2: yeah, we can go back around

WITNESS 1: yeah, I can turn around but, alright

911 OPERATOR: okay, they’re

WITNESS 1: I’m on the feeder road

911 OPERATOR: they’re at Barron and Highway 6

WITNESS 2: They’re right behind, next to the Dexter Insurance
Building

WITNESS 1: Dexter Insurance Building

WITNESS 2: And, American Mo- Bank or whatever it is

WITNESS 1: The insurance building

911 OPERATOR: Are they right there before the

WITNESS 1: yeah, they’re right there by the insurance building

911 OPERATOR: Chevron, is the Chevron right there?

WITNESS 2: No, there’s like a

                                20
WITNESS 1: No, no there’s, that’s uh

WITNESS 2: American Momentum Bank

WITNESS 1: where this bank is

911 OPERATOR: So, they’re on Graham Road?

WITNESS 1: Graham Road, Graham Road yeah. I passed up
Graham Road already

911 OPERATOR: okay, they’re on Graham, Arby’s, okay
                                     [Time Stamp: 00:13:51]

WITNESS 1: I got it

911 OPERATOR: okay, is there a way you can uh pull back around?

WITNESS 1: yes

WITNESS 2: We’re just gonna go under the bridge thing and come
back

WITNESS 1: Alright, Ima come back around, okay?

911 OPERATOR: okay, uh um how did you take the bridge, the turn
around?

WITNESS 1: yeah Ima go back to the turnaround

911 OPERATOR: okay. That’s fine yeah just go and um

WITNESS 1: I don’t want them to see me

911 OPERATOR: you don’t have to get out of the car

WITNESS 1: Alright.

911 OPERATOR: Well, here hold on real quick, hold on for me

                                21
WITNESS 1: okay, I already turned

WITNESS 2: I don’t recog- I don’t know the truck

911 OPERATOR: yes, they are turning back around, they passed up
the officers and they are turning back around. Okay, we are gonna
ask the officer, okay, if he needs you to stand by alright? Alright?

WITNESS 1: Alright.

911 OPERATOR: So, just kinda hang on for me real quick

WITNESS 1: Alright.

911 OPERATOR: if you need to, pull off like to the shoulder or
something

WITNESS 2: and I seen the way he was moving and he looked and
he looked suspicious, you know what I’m saying? [Time
Stamp:15:24]

911 OPERATOR: yeah, yeah he stole it

WITNESS 2: I was leaning on the end of the car and I noticed there
was somebody over there messing with all that, it sure was late for
somebody to be messing with that stuff. That was just odd, you
know what I’m saying?

911 OPERATOR: hold on for me

WITNESS 1: Alright, I’m over here at the Harley Davidson shop
they want me to loop back around them

911 OPERATOR: You’re by the Harley Davidson?

WITNESS 1: yeah, Harley Davidson shop

911 OPERATOR: Okay. Are you pulled into the parking lot?



                                22
WITNESS 1: uh yeah, I’m pulling into the parking lot right now

911 OPERATOR: okay

WITNESS 1: Is he out too? I guess they didn’t want me to see him

911 OPERATOR: hold on, that might be an okay place to just stay
there and the officer can just meet you over there

WITNESS 1: Alright, that’s cool

911 OPERATOR: Let me just check real quick

WITNESS 1: okay

911 OPERATOR: He’s in the Harley Davidson parking lot

WITNESS 1: I’m not…nah, the cops already know I’m over
here…(indistinguishable)...motion sensor…(indistinguishable)

911 OPERATOR: Yeah just sit tight for me right quick, alright?

WITNESS 1: Alright

911 OPERATOR: The officers are trying to get everything figured
out.

WITNESS 1: there goes another one…man I wish I was on patrol,
oh there goes the sheriff

WITNESS 2: they’re ready to get his ass

WITNESS 1: man, sheriff coming, College Station, what’s this one?

WITNESS 2: I’m the one that noticed it, I was the one watching
them

WITNESS 1: I know




                                  23
WITNESS 2: I’m just leaning on the hood of the car talking, and
then I’m like, you see that?

WITNESS 1: You were like, “Mario get in the car.” I can’t believe
someone gonna steal a trailer at 12 o’clock at night, one o’clock

911 OPERATOR: is that right there where yall live?

WITNESS 1: yeah

WITNESS 2: I live there

WITNESS 1: yeah she lives there

911 OPERATOR: yall know who the owner is of that trailer, or
no?

WITNESS 1: uh, we think it’s like the weight lifting
                                        [Time Stamp: 00:18:12]
WITNESS 2: the power lifting

WITNESS 1: Like power lifting and exercising, and stuff like that

WITNESS 2: they’re there every day exercising

WITNESS 1: So, they know that something is inside that trailer

911 OPERATOR: yeah, bunch of probably weights and stuff that
cost a lot of money

WITNESS 1: yeah, yes

WITNESS 1: Ima go trade my car in now

WITNESS 2: yeah

911 OPERATOR: just wait right there, I can get off the phone with
them. Okay, sir?

WITNESS 1: yes

                                24
      911 OPERATOR: Ima go ahead and get off the phone with you,
      but if you guys can just sit tight in that parking lot, we are gonna
      have the officer come over to you guys, alright?

      WITNESS 1: Alright

      911 OPERATOR: And, if anything changes I’ll give you a call

      WITNESS 1: Alright

      911 OPERATOR: Alright?

      WITNESS 1: Alright

      911 OPERATOR: Alright, bye.

      WITNESS 1: Bye.

See (9 RR State’s Pre-Trial Exhibit No. 3: Audio of 911 call from 00:00:00
to 000:19:17).

State’s evidence during guilt-innocence phase

      Officer James Hauke (the detaining officer), testified that he was a

certified peace officer for over 19 years with thousands of hours of training. (6

RR 189-90). On March 9, 2013 around 12:45 a.m., 911 dispatch reported a “call-

in-progress.” (6 RR 190). A call-in-progress provides law enforcement with what

is currently occurring. (6 RR 190). The call was for a reckless driver who was

traveling through neighborhoods suspiciously. (6 RR 191).

      Witnesses reported that they were following the driver they believed had

stolen a trailer. (6 RR 191). Dispatch provided the witnesses’ descriptions of the



                                       25
suspects vehicles. (6 RR 191). The suspect vehicle was described as a “black

dually pulling a white cargo trailer.” (6 RR 191). The reporting witnesses’

vehicle was a maroon Dodge Charger. (6 RR 191). Hauke located both vehicles

as they were traveling on the highway in South College Station. (6 RR 192). He

“observed a maroon Charger following a pickup with a cargo trailer attached to

it.” (6 RR 192). Hauke specifically identified Appellant’s black truck as the

witnesses reported it. (6 RR 192). After Hauke identified the truck with the cargo

trailer, Appellant exited the highway, and Hauke followed behind him. (3 RR

192). Hauke then initiated a traffic stop at Graham Road and Barron Road. (6 RR

192).

        Hauke’s dash-cam recorded the pursuit of the stolen trailer and Appellant’s

traffic stop. (6 RR 193). Hauke explained that State’s exhibit 2 was a screenshot

from his dash-cam video showing the hood of his patrol unit, the black dually

truck, and the cargo trailer he suspected had been stolen. (6 RR 194-95). The

video also showed Appellant getting out of the black dually. (6 RR 195). Hauke

also explained that the footage showed him following behind the white cargo

trailer. (6 RR 197).

        Once Appellant was detained, Hauke confirmed that Appellant was not the

owner of the cargo trailer, and Appellant did not have the keys to open the cargo

trailer. (6 RR 163, 197-98). Hauke also spoke to the two witnesses that reported



                                         26
Appellant to 911 dispatch, and both of them provided their names: Carla Pillow

and Mario Thompson. (6 RR 198-99).

      On cross-examination, Hauke agreed that he should make sure he has the

best evidence before stopping people and accusing them of a crime, and it was

also important for Hauke to verify information he received before he stops

someone for committing a crime. (6 RR 199-201). Hauke agreed that he did not

make any contact with whom he believed had stolen the trailer. (6 RR 201).

Hauke admitted that all of his information was based on information exchanged

between witness-to- dispatch- to-officer. (6 RR 201). Hauke only spoke directly

to the witnesses, later. (6 RR 202).

      Hauke agreed that he didn’t’ know very many details, and he just had the

identification of who somebody Hauke did not know that was accusing

somebody else of stealing a trailer. (6 RR 202). However, Hauke stated that he

did verify a white trailer was being pulled by a black dually. (6 RR 202). Hauke

agreed that he could not see the license plate numbers, so he started a felony stop

before Hauke had all the facts, and that getting that license plate is pretty

important to an investigation of the stolen trailer. (6 RR 204).

      Hauke testified that dispatch informed him that somebody hooked up a

trailer and drove away with it. (6 RR 205). Hauke knew the reporting persons

were witnesses from across the street. (6 RR 206). Hauke also admitted that “the



                                         27
stop happened before [Hauke] [was] able to verify some critical information.” (6

RR 206). However, Hauke testified that he could only initiate an investigation

into the truth of the reporting witnesses’ report after first making a traffic stop. (6

RR 296).

      Further, Hauke stated that dispatchers were “continuously” getting

information “straight from the witnesses who were following the suspects,” and

then 911 dispatch relayed that information to Hauke who “continuously” received

updates. (6 RR 207). Hauke believed it was important to stop Appellant because

of the “need to stop the theft in progress, and we don’t want to jeopardize our

witnesses. He’s [Appellant] already tried to elude, based on the call, one time

from witnesses. So we don’t want anything reckless happening.” (6 RR 207). The

witnesses who were continuously on the phone with 911 dispatch stuck around to

talk to officers. (6 RR 207). Hauke stated that he could not make out the license

plates number to find out who the owner was, so he had no other way to

investigate whether the cargo trailer was stolen unless he stopped Appellant, first.

(6 RR 208).

      Mario Thompson testified that he was the witness who chased Appellant

when it appeared that he had stolen someone’s trailer and reported Appellant to

911. (7 RR 18, 39). He stated that on March 9, 2013, he was at a barbecue at his

friend, Carla Pillow’s, house. (7 RR 8-9). Mario had been friends with Carla for



                                          28
over five years. (7 RR 8). Carla’s barbecue lasted “about all night,” and Mario

did not leave until around one in the morning. (7 RR 9). Carla Pillow lived in

Brazos County off of Martin Luther King and Tabor Road. (7 RR 9).

      That night, they were standing in Carla’s driveway. (7 RR 12). Around

12:30 at night, Mario saw something that caught his attention. (7 RR 12). Across

the railroad tracks, he could see someone standing at a building that “exercising

people use” after work. (7 RR 12). Mario would visit Carla at night, and “there’s

usually not nobody over there at that time.” (7 RR 12). The area is usually pretty

dead. (7 RR 12). There was always a white box trailer at the building. (7 RR 13).

Mario believed the trailer was full of workout equipment. (7 RR 13).

      That night, Mario saw a black Chevy dually suspiciously next to the trailer.

(7 RR 13-14). He could see “lights come on and lights come off,” but then he did

not see anyone until cars passed by and illuminated the suspect who was in a

hiding spot. (7 RR 14). When cars would pass by, and their headlights hit the

suspect, the suspect would hide by “just kind of putting their self-up against the

trailer between the truck and the trailer.” (7 RR 15). But, when the headlights

went away, the suspect would continue “going on with their business.” (7 RR

15). Mario had never seen anyone over at that building during that hour when he

would visit Carla Pillow. (7 RR 15).




                                       29
      It took the suspect about 15-20 minutes to hook up the trailer, and Mario

suspected it took so long because the person was “trying to get the lock off.” (7

RR 15). Mario saw that the person was messing with the trailer hitch. (7 RR 16).

The suspect was there alone. (7 RR 16). After the suspect hooked up the trailer

to his truck, he “took off pretty fast” and “jumped the curb” when taking off. (7

RR 18). Mario decided to follow him because “nobody is not supposed to be

stealing a trailer.” (7 RR 18).

      While following the suspect, Mario lost him for a few seconds but then

caught back up. (7 RR 20). Mario saw that the suspect stopped and was

“fiddling” with the trailer; Mario thought the suspect probably jack-knifed it. (7

RR 21). Mario called 911 and that is when the suspect took off again. (7 RR 21).

The suspect only got out of his truck once, and Mario saw him get back into his

truck. (7 RR 22). The suspect traveled down a dead-end street, and then turned

around to go to Martin Luther King Street, and then headed to Highway 6. (7 RR

22). Mario continued to follow behind the suspect but kept a good distance

because he did not want the suspect to see him. (7 RR 23). Mario could tell that

the suspect knew he was being followed because the suspect took off fast onto

the highway and was driving in between cars. (7 RR 23). One of the reasons

Mario believed the suspect had stolen the trailer was because he was “driving

crazy.” (7 RR 31).



                                       30
       Mario could clearly see the white trailer and big dually pickup truck. (7 RR

35-36). Mario agreed that he could not see the interior of the truck, so there could

have possibly been another person inside. (7 RR 36). The suspect also drove the

wrong direction down a one-way alley with signs stating, “Do Not Enter.” (7 RR

35).

       Mario agreed it was possible that the person who got back into the vehicle

was a different person. (7 RR 43). Mario was not able to determine the suspect’s

identity. (7 RR 43). However, Mario testified that he only lost sight of the suspect

for a brief period and “got right back to him” “pretty quick.” (7 RR 44).

       Mario agreed that although he could not say for certain that the exact

person that hooked up the trailer was the same person he watched get out of the

vehicle on Manning Way street, “there was nobody that came outside of a house

or out of another vehicle that was around.” (7 RR 46-47).

       Duane Monteilh testified that he was an employee of Woodbolt

Distributors that was doing business as Nutrabolt. (7 RR 49). He was the

purchasing agent that bought the white cargo trailer for Woodbolt Distributors. (7

RR 49-50). The trailer cost $4,651.03. (7 RR 52). He bought the trailer on

November 27, 2012. (7 RR 53). They stored the trailer on the back alleyway

behind the company warehouse. (7 RR 53). The trailer was used to store workout

equipment, and it held $10,500.00 worth of workout equipment when it was



                                        31
stolen. (7 RR 53-54). Monteilh verified that the stolen trailer was the same trailer

that belonged to his company and held their workout equipment. (7 RR 55).

Monteilh also stated that the company’s workouts took place in the evenings

around five and five-thirty. (7 RR 55).

       The trailer was secured by “a lock in the ball, a lock in the pin that comes

back, a lock around the wheel, and then there are locks on the doors. One on the

side door and two on the back door.” (7 RR 56). It would not be possible for

someone to just hook up the trailer and drive off real quick. (7 RR 56). To steal

the trailer, it would take the person “some time.” (7 RR 56). Further, if someone

were at the company warehouse at 1:00 a.m., that would be suspicious. (7 RR

56).

       Only two people had keys to use the trailer, and if an employee were trying

to use the trailer, that person would have to have permission and the keys from

either Monteilh or another employee named Colton Leonard. (7 RR 56-57).

Monteilh did not know Appellant. (7 RR 57). Appellant was in possession of the

company’s trailer without consent. (7 RR 58).

       Nathan Kleiman testified that he was an employee of Woodbolt

Distribution on March 9, 2013 and was the one contacted about the trailer being

stolen. (7 RR 61). Kleiman testified that a few employees had permission to use




                                          32
the company’s trailer. (7 RR 62). Appellant did have consent to use the company

trailer. (7 RR 62). Kleiman did not even know Appellant. (7 RR 62).

                 SUMMARY OF THE STATE’S ARGUMENT

No. 1

        In his first point of error, Appellant alleges the trial court committed error

when it allowed the State to amend the punishment enhancement paragraph of his

indictment after the jury was sworn in and over his objection. Here, the State

gave the defendant sufficient notice of the conviction used to enhance his

punishment range. Appellant improperly relies on the limitations imposed by

Tex. Code Crim. Proc. art. §28.10(b) which prohibits the State from amending

indictments after the jury has been sworn in. However, Article §28.10(b) was not

applicable. The State was therefore entitled to amend the enhancement paragraph

regardless of the jury being sworn in and over Appellant’s objection. Thus, the

trial committed no error and Appellant’s first point of error is meritless.

No. 2

        In his second point of error, Appellant complains that the trial court erred

when it denied his Motion to Suppress. Specifically he alleges that the detaining

officer failed to corroborate the witnesses who reported Appellant’s ongoing

criminal activity, and the lack of corroboration resulted in insufficient reasonable




                                          33
suspicion to stop Appellant. Appellant complains that the trial court erred when it

found that the detaining officer had sufficient reasonable suspicion.

      However, the detaining officer did gather corroborating information before

initiating the traffic stop. Officer Hauke observed the described witness and

suspect vehicles traveling on the highway in the direction that the witnesses

reported, and he also observed the suspect with the stolen property that the

witnesses described.

      Nevertheless assuming, arguendo, Hauke’s corroboration was slight,

Hauke’s observations were still sufficient to satisfy reasonable suspicion because

the witnesses tip was “inherently reliable.” Prior to the traffic stop, the witnesses

gave dispatch their identifying information and the witnesses’ only connection to

the offense is that of a concerned citizen reporting suspected criminal activity.

The eye-witnesses provided thorough details, spoke to the 911 operator for a

lengthy period of time, and provided continuous updates as they followed

Appellant who was “driving crazy” down streets and the highway. As a result,

the witnesses’ information was considered inherently reliable.

      Lastly, the witnesses provided 911 with extensive information to

substantiate reasonable suspicion, and that information is included in the totality

of the circumstances to justify Appellant’s traffic stop. Because a 911 dispatch

operator is considered a “cooperating officer,” any information 911 dispatch



                                         34
acquired from the witnesses is included in the totality of the circumstances to

justify reasonable suspicion. As a result, the trial court did not err when it denied

Appellant’s motion to suppress evidence. Thus, Appellant’s second point of error

is without merit.

No. 3

        In his final point of error, Appellant states that his judgment of conviction

incorrectly reflects an enhanced conviction for a second-degree felony.

Appellant’s punishment range was properly enhanced, and he was appropriately

sentenced within the applicable range of punishment. However, the degree of his

offense was not enhanced. Therefore, Appellant’s judgment should be reformed

to show that the degree of his offense was a state-jail felony instead of a second-

degree felony.

   STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 1

        The trial court committed no error when it permitted the State
        to amend Appellant’s indictment after the jury was sworn in
        because the State amended an enhancement paragraph-not the
        language of the charged offense, and the State already provided
        sufficient notice of the prior conviction used for enhancement.

        In his first point of error, Appellant alleges that the trial court erred when it

allowed the State to amend the enhancement paragraph of the indictment after the

jury was sworn in. (Appellant’s brief, p. 9). Appellant argues that the trial court

violated Tex. Code Crim. Proc. art. 28.10(b) whereby the State is prohibited from



                                           35
amending an indictment after the jury was sworn in, over the defendant’s

objection. First, the State amended an enhancement paragraph, which does not

trigger Article 28.10(b). Therefore, Appellant’s reliance on Article 28.10(b) is

misplaced. Enhancement paragraphs can be amended on the day of trial in spite

of the jury being sworn in and over the defendant’s objection. To prove the trial

court erred, Appellant was required to show that he was misled by the

amendment; so the trial court did not err. Second, when the court initially

addressed the State’s amendment, the jury had not been sworn in yet, and

Appellant’s trial counsel stated that they had no objection; therefore, he failed to

preserve error.

      Finally, the variance in the indictment was not fatal. Thus, even if the State

did not amend the enhancement paragraph, the indictment would have been valid

notwithstanding the variance in the conviction date. Assuming, arguendo, that

the trial court erred by authorizing the State’s amendment, such error was

harmless. In conclusion, Appellant’s first point of error is meritless.

Relevant facts- pretrial objection

      Appellant was indicted in the instant cause no. 13-02053-CRF-272 for

theft of property $1,500-$20,000. The trial court swore the jury in around 4:04

p.m. on the day of trial. (6 RR 183-184). However, before the jury was sworn in,

the State informed the court and the defense that they were going to amend the



                                         36
enhancement paragraph to cure an error in one of the prior conviction dates for

use during the punishment phase of trial. (6 RR 121-22). The amendment would

change the prior conviction date from August 4 to August 14. (6 RR 121-22). On

the record, Appellant’s trial counsel stated that he had no objection to the State’s

amendment:

      THE COURT: Is this one we’re going to read prior convictions at
      the guilt/innocence or wait till punishment?

      MR. ROGERS: Wait till punishment. I actually talked to Mr.
      Flanigan about this. I’m going to amend one of the priors. It
      reads from the 4th day of August, I believe, and it should read
      on the 14th day. Dropped the one. I don’t believe Shannon has
      any objection to that.

      MR. FLANIGAN:              We don’t have objection to that, your
      Honor. That’s going to be a punishment issue anyway. May have to
      reset it for several days.

      THE COURT:           Not reading the punishment until we get to
      punishment?

      MR. ROGERS:        Correct.

      THE COURT:        The enhancements.

      MR. FLANIGAN:            I want to make sure we don’t say anything
      about that. I’ll be jumping up and screaming at that point.

(6 RR 121-22). (emphasis added).

      Later, after the jury was sworn in but before the punishment phase began,

the State attempted to proceed on the amendment that the parties had previously

agreed to. (6 RR 211-12). At that point, Appellant’s trial counsel changed his

                                        37
position and objected to the State’s amendment. (6 RR 211-14). Appellant

erroneously believed that the State was procedurally barred from amending the

enhancement paragraph once a jury had been sworn in:


      MR. FLANIGAN: Judge, we didn’t have an objection to the
      amending of the enhancement paragraph to correct a clerical
      error. Just want it on the record it’s being done now after the
      jury has been sworn though.

      THE COURT:               What’s being done, Mr. Prosecutor?

      MR. ROGERS:             All right, Judge, I have amended. I have
      struck the number four in the context this is the 4th day of August
      1978 and amended with the 14th day of August 1978.

      THE COURT:               That’s an enhancement paragraph number
      one or two?

      MR. ROGERS:              That’s in paragraph number one of the
      enhancement.

      THE COURT:               All right. Any objection?

      MR. FLANIGAN: Your Honor, at this point because the jury had
      already been sworn -- I’m sorry, I assumed that we were going
      to do this before the jury was sworn. I have to object to it at this
      point. I know, though, that the enhancement paragraphs will not
      come into play until punishment. We’ve asked for your Honor to
      hear punishment at a later time.

      THE COURT: It was brought to my attention before the jury
      was sworn this needed to be done. You indicated you had no
      objection.

      MR. FLANIGAN:          That’s correct. My concern is that now
      that the jury has been sworn I don’t know that an indictment


                                      38
       can be amended. I have my concerns about that, that’s why I’m
       raising that objection.

       MR. ROGERS: Sorry to talk over you. Indictment as to
       enhancement paragraph is merely notice to proceeding. At that point
       you can do it by Brooks’ notice.[2] That’s not even in the indictment.
       And we can still go forward on that.

       THE COURT:         Could you do that after – his big problem is the
       jury has already been sworn.

       MR. ROGERS: I believe that it’s if the defense was put on notice,
       which they certainly have, as to what charges we’re bringing to use
       on the enhancement, the only thing we changed is the conviction
       date.

       THE COURT:            And when was the first time you discussed this
       with counsel?

       MR. ROGERS:           I believe it was this morning.

       MR. FLANIGAN: This morning.

       MR. ROGERS:           Prior to jury selection.

       MR. FLANIGAN: That’s correct.

       MR. ROGERS:           Indicated had no objection to that.

       MR. FLANIGAN:           Certainly Mr. Rogers has done -- I’m
       not complaining about any undue surprise or anything like that.
       I don’t have a problem with that. My question is, I thought we
       were actually going to do the amendment before –



2
        Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997) (holding that: “a defendant
is entitled to notice of prior convictions to be used for enhancement. But alleging an
enhancement in the indictment is not the only reasonable method of conveying such
notice…convictions used as enhancements must be pled in some form, but they need not be
pled in the indictment.”)

                                             39
      THE COURT:         He tried to do it, as I recall, at three o’clock, but
      your client was not here. He was 12 minutes late.

      MR. FLANIGAN: Right.

      THE COURT:          So I told him we had to wait until your client got
      there.

      MR. FLANIGAN: Jury already been sworn at that point, I think.

      MS. HEBERT:         They had not.

      MR. FLANIGAN: They had not, okay.

      THE COURT:          No, they were not sworn.

      MR. FLANIGAN: I thought they were sworn before we left for
      lunch.

      THE COURT:         So it was due to your client’s absence we could
      not do it in advance of the swearing of the jury. So I’m going to
      overrule your objection.

      MR. FLANIGAN: Thank you.

(6 RR 211-14). (emphasis added).

The enhancement paragraph was properly amended though it was done after
the jury was sworn in and over Appellant’s objection.

      Despite Appellant’s complaint, the State is not barred from amending an

enhancement paragraph of an indictment on the sole basis that a jury was already

sworn in and the defendant objected to the amendment. See Barnes v. State, no.

14-05-00144-CR, 2006 WL 2548186, at *3-4 (Tex. App.—Houston [14th Dist.]

Sept. 5, 2006, pet. ref’d) (not designated for publication). If the State seeks to



                                          40
correct a prior conviction date in an indictment’s enhancement paragraph,

Article 28.10(b) does not apply. Id. at *4 (“we find that Article 28.10 [3] does not

apply to the alteration of the conviction date in the enhancement paragraph.”)

Therefore, Appellant’s complaint is baseless.

       In order for Appellant to successfully complain of an amendment to his

enhancement paragraph, Appellant must prove that the amendment created

prejudice. See Bryant v. State, 14-99-01373-CR, 2002 WL 27573, at *3 (Tex.

App.—Houston [14th Dist.] Jan. 10, 2002, pet. ref’d) (not designated for

publication.) Specifically, Appellant must prove that the amendment created

undue surprise as a result of the mistake in his enhancement paragraph, and that

Appellant could not discern which prior conviction the State intended to use

against him. Id. Here, Appellant’s trial counsel conceded that Appellant was not

surprised. (6 RR 211-214).

Discussion-Appellant agreed to the amendment before the jury was sworn;
Appellant suffered no harm

       Appellant complains that: “because [Appellant] objected to the State’s

motion to amend the indictment on the day of trial, it was error for the trial court

to grant the amendment.” (Appellant’s brief, p. 9). However, prior to the jury

3
       Tex. Code Crim. Proc. § art. 28.10(b) states:

      A matter of form or substance in an indictment or information may also be amended
      after the trial on the merits commences if the defendant does not object.
TEX. CODE CRIM. PROC. § art. 28.10 (b) states

                                              41
being sworn in, Appellant’s trial counsel stated that he had no objection to the

amendment:

        MR. ROGERS: Wait till punishment. I actually talked to Mr.
        Flanigan about this. I’m going to amend one of the priors. It
        reads from the 4th day of August, I believe, and it should read
        on the 14th day. Dropped the one. I don’t believe Shannon has
        any objection to that.

        MR. FLANIGAN:              We don’t have objection to that, your
        Honor. That’s going to be a punishment issue anyway. May have to
        reset it for several days.

(6 RR 121-22). (emphasis added).

Appellant’s trial counsel only changed his objection at the punishment phase of

trial because he erroneously believed that, once the jury was sworn in, the State

was procedurally barred from amending the indictment’s enhancement paragraph
4
    :

        MR. FLANIGAN:            Your Honor, at this point because the
        jury had already been sworn -- I’m sorry, I assumed that we
        were going to do this before the jury was sworn. I have to object
        to it at this point. I know, though, that the enhancement
        paragraphs will not come into play until punishment. We’ve
        asked for your Honor to hear punishment at a later time.

        THE COURT:            It was brought to my attention before
        the jury was sworn this needed to be done. You indicated you
        had no objection.



4
        See Barnes v. State, 2006 WL 2548186, at *3-4 (Tex. Code Crim. Proc.§ art. 28.10(b)
does not apply to the enhancement paragraphs within an indictment, so it serves as no bar that
a jury was already sworn in and the defendant objected to the amendment.)

                                              42
      MR. FLANIGAN:           That’s correct. My concern is that now
      that the jury has been sworn I don’t know that an indictment
      can be amended. I have my concerns about that, that’s why I’m
      raising that objection.

(6 RR 212-13). (emphasis added).

Appellant’s trial counsel conceded, however, that Appellant was not prejudiced

by surprise:

      THE COURT:                 And when was the first time you discussed
      this with counsel?

      MR. ROGERS:                I believe it was this morning.

      MR. FLANIGAN:              This morning.

      MR. ROGERS:                Prior to jury selection.

      MR. FLANIGAN: That’s correct.

      MR. ROGERS:                Indicated had no objection to that.

      MR. FLANIGAN:           Certainly Mr. Rogers has done -- I’m
      not complaining about any undue surprise or anything like that.
      I don’t have a problem with that. My question is, I thought we
      were actually going to do the amendment before –

(6 RR 211-214). (emphasis added).

      Consequently, Appellant cannot demonstrate that the trial court erred by

allowing the State to amend his enhancement paragraph. First, Appellant did not

preserve error: he failed to object to the amendment when he had the opportunity

to do so. Sample v. State, 405 S.W.3d 295, 303 (Tex. App.—Fort Worth 2013,

pet. ref’d.) (“[a]n appellant fails to preserve error by failing to object when he had

                                         43
the opportunity….”). Instead, Appellant specifically stated on the record that he

had no objection to the amendment. (6 RR 121-22).

      Second, Appellant’s trial counsel conceded that they had no complaint

about being unduly surprised. (6 RR 212-214). Appellant’s admission proved that

the State’s amendment did not create prejudice, so there was no error when the

trial court authorized the amendment. (6 RR 212-14). Barnes v. State, 2006 WL

2548186, at *4 (amendments to enhancement paragraphs are only improper

when “the discrepancy between the alleged date and the actual date of the prior

conviction operated to deprive appellant of notice of the specific conviction the

State intended to use for punishment enhancement.”) Because Appellant (1) did

not object to the amendment the first time he had the opportunity to do so, and

(2) Appellant did not show that the amendment prejudiced him to his detriment,

he failed to demonstrate that the amendment was improper or that the trial court

erred. Thus, his first point of error is without merit.

Harmless Error-the variance in Appellant’s date of conviction was not fatal

      Assuming, arguendo, that the trial court erred by permitting the State to

amend the enhancement paragraph, Appellant must also show that a substantial

right was affected in order for the appellate court to remand his case to the trial




                                          44
court for a new punishment hearing. TEX. R. APP. P. 44.2(b)5. In order for a

substantial right to be affected, the error must have a substantial and injurious

effect of influence on the jury’s verdict. See King v. State, 935 S.W.2d 266, 271

(Tex. Crim. App. 1997). Finally, in considering whether the error had a

substantial and injurious effect or influenced the jury’s verdict, the reviewing

court should consider “the character of the alleged error and how it might be

considered in connection with other evidence in the case.” Motilla v. State, 78

S.W.3d 352, 357 (Tex. Crim. App. 2002).

       Where an indictment’s enhancement paragraph contains an incorrect

conviction date, and the defendant is afforded other, correct details of the prior

conviction such as: the correct court, cause number, county, year, and offense, no

harm results. Barnes v. State, 2006 WL 2548186, at *4. “The only purpose of an

enhancement paragraph is to provide the accused with notice that the State will

attempt to use a specific conviction for enhancement of punishment.” Bryant v.

State, 2002 WL 27573, at *3.

       As a result, a variance in the enhancement paragraph is not fatal “so long

as appellant was not prevented from identifying the conviction and preparing a

defense thereto.” Id. Thus, a minor clerical error in an enhancement paragraph

will not render the indictment invalid. Id. (“The object of the doctrine of variance

5
        Tex. R. App. P. 44.2(b) states in full: “Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”

                                                45
between allegations of an indictment is to avoid surprise, and for such variance to

be material it must be such as to mislead the party to his prejudice.”)

      Accordingly, where the State proves up the correct court, cause number,

county, year, and offense, the indictment will not be considered defective because

the correct details provide the defendant with adequate notice of his prior

conviction. See Id.; Barnes v. State, 2006 WL 2548186, at *4.

      Like in Barnes and Bryant, there was no harm. The indictment (CR 5)

supplied Appellant with several additional facts that provided Appellant with

sufficient notice of the prior convictions the State intended to use against him.

Appellant’s indictment contained the correct court, cause number, offense,

county, and year of the prior convictions. Id. The State also entered the

judgments and convictions to prove up those facts. (8 RR 10; See State’s exhibits

No. 25).

      Thus, pursuant to Motilla and Solomon, even if this Court finds that the

trial court erred by allowing the State to amend the enhancement paragraph, this

Court should find that the error had no impact, and as a result, there was no harm.

The record is clear that, in spite of the variance in the conviction date, Appellant

still received adequate notice from the other facts in his indictment. Therefore,

even if the enhancement paragraph was not amended, the indictment would have




                                         46
been upheld as valid. Appellant’s first point of error is without merit and should

be overruled.

   STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 2

       The trial court committed no error when it denied Appellant’s
       Motion to Suppress Evidence, where he alleged there was no
       corroboration of the witnesses tip. The record shows that: (1)
       law enforcement corroborated the witnesses observations and
       (2) the witnesses provided an inherently reliable tip.

       Appellant complains that the detaining officer lacked reasonable suspicion

to conduct a traffic stop because he failed to corroborate the reporting witnesses’

tip. However, the detaining officer did corroborate the witnesses’ report: the

detaining officer observed Appellant in the black dually truck, with the stolen

cargo trailer, and at the location that the witnesses described. Additionally, the

witness’s information was inherently reliable thereby warranting the officer’s

belief that the traffic stop was justified.

Standard of Review

       A trial court’s ruling on a motion to suppress is reviewed under an abuse-

of-discretion standard. Mount v. State, 217 S.W.3d 716, 724 (Tex. Crim. App.

2007). As long as the trial court’s ruling is within the “zone of reasonable

disagreement,” the ruling will not be overturned. See Newton v. State, 301

S.W.3d 315, 317 (Tex. App. —Waco, 2009, pet. ref’d). Appellate courts give

almost total deference to both (1) the trial court’s resolution of historical fact; and



                                              47
(2) mixed questions of law and fact that turn on the weight or credibility of the

evidence. The application of law to undisputed facts is reviewed de novo. See

Brother v. State, 85 S.W.3d 377, 381 (Tex. App.—Fort Worth 2002, pet. ref’d).

Under a de novo review, the evidence is viewed in the light most favorable to the

trial court’s ruling, and the reviewing court may not disturb supported findings of

fact absent an abuse of discretion. Id.

Findings of Fact and Conclusions of Law

        The trial court entered the following Findings of Facts and Conclusions of

Law after a hearing on Appellant’s Motion to Suppress Evidence held April 6,

2015:


        1.    On April 6, 2015, the Defendant filed his Motion to Suppress
        Evidence. (CR 22). He complained that the stop of the defendant’s
        vehicle was unlawful under both the Fourth Amendment and Tex.
        Const. art. I, §9 and prayed that all evidence obtained as a result of
        the stop be suppressed. (CR 23). The defendant did not analyze,
        argue, or provide authority to establish that his protection under Tex.
        Const. art. I, §9 exceeds or differs from the protection provided to
        him by the Fourth Amendment, however.

        2.    On April 6, 2015 a hearing was held on the Defendant’s
        Motion to Suppress Evidence. (6 RR 155-183). The defense argued
        that:

              Your Honor, Officer Hauke was, no question, doing the best
              he could, but the fact is he stopped the person too early. He
              stopped the person before he was able to run the [vehicle and
              trailer license] tags. If he were able to run the tags, maybe he
              would have had a little bit more articulable facts to add to his
              suspicion that would have made this reasonable….

                                          48
      You know, obviously stops can be made on basis of
      reasonable suspicion, not necessarily probable cause. But that
      reasonable suspicion has to be articulable, and it’s not. Even
      though he [Officer Hauke] has a suspicion of what kind of
      crime may have been committed by my client, he didn’t have
      any easily verifiable information before he made that stop. He
      could have run that tag. He could have followed the vehicle
      for a longer period of time.
  (6 RR 178-179).

3.     Admitted by the State during the hearing without objection
were the following exhibits: State’s Pretrial Exhibit 1: in car video
from Officer’s Hauke’s patrol vehicle showing the stop of the
defendant’s vehicle and trailer; State’s Pretrial Exhibit 2: Computer-
aided dispatch “CAD” notes from 911 Dispatch concerning the stop;
State’s Pretrial Exhibit 3: audio of the 911 call from the reporting
persons. (6 RR 157-159). State’s Pretrial Exhibits 1 and 3 were
played in court. (6 RR 164).

4.    State’s Pretrial Exhibit 2 (“CAD” notes) indicated the
following pertinent information was relayed by the reporting persons
to 911 Dispatch, which was then relayed to Officer Hauke (6 RR
157):

   12:49:31am RP BELIEVES THESE PPL STOLE A
   TRAILER
   12:49:42   THEIR     DRIVING    IS   CRAZY,   RP
   FOLLOWING
              12:50:33   BLK DUALLY WITH TRAIILER
              [sic] ATTACHED TO BACK
   12:54:00   RP IN MAROON DODGE CHARGER
   12:58:04   RP HAS FLASHER ON
   12:58:11   RIGHT BEHIND THEM
   12:58:22   RP SAYS K9 RIGHT BEHIND
   12:58:32   WHITE BOX TRAILOR [sic]
   12:59:11   BARRON ROD[sic] EXIT. EXITING
              01:06:02   RP IS GOING TO WAIT AT THE
              HARLEY DAVIDSON PARKING TLOT




                                 49
5.    Officer James Hauke (Bryan Police Department) testified
during the hearing that he was assigned to the Canine (K9) Unit that
supports patrol. (6 RR 156).

6.      Officer Hauke stated that on March 9, 2013 at 12:40 a.m., 911
Dispatch broadcast a call of a reckless vehicle with a possible stolen
trailer behind it. (6 RR 156, 160). The location in Bryan was in the
area of Martin Luther King Street and the side streets of Dumas,
Moss and Manning Way. (6 RR 159).

7.     911 Dispatch later advised that the reporting persons relayed
that they were driving a maroon Dodge Charger and were following
the suspect vehicle with the stolen trailer; the suspect vehicle was
described as a black dually pickup with a trailer attached to the back.
(6 RR 160-161). That information, and all additional information
provided by the reporting persons, was relayed to Hauke through
911 Dispatch. (6 RR 166).

8.     The reporting persons told 911 Dispatch that the suspect
vehicle was traveling on Highway 6 while leaving Bryan and
entering the city limits of College Station. (6 RR 161).

9.    Officer Hauke entered Highway 6 southbound, passed the
maroon Charger and pulled in behind the suspect vehicle. (6 RR
161). The Court finds that Officer Hauke corroborated the
information provided by the reporting persons to 911 Dispatch. (6
RR 175).

10. Officer Hauke attempted to read the paper license tag for the
trailer. (6 RR 167). All he could make out was “D13.” Because he
was not able to determine the entire license tag for the trailer,
Officer Hauke was not able to request that 911 Dispatch determine
who the registered owner was before he stopped the suspect vehicle.
Officer Hauke also could not see the license plate for the suspect
vehicle. (6 RR 168).

11. The suspect vehicle exited Highway 6 at the Barron Road exit
in College Station. (6 RR 161, 172). Officer Hauke and the maroon
Charger followed. Officer Hauke waited for a College Station Police
unit to arrive as backup before initiating his stop of the suspect

                                  50
vehicle. (6 RR 161).

12. Officer Hauke stated that he did not personally witness any
reckless driving from the suspect vehicle. (6 RR 175).

13. The suspect vehicle turned on to Graham Road, and the
defendant exited the suspect vehicle. (6 RR 162). Officer Hauke told
the defendant to put his hands on the cab of the truck and then told
the defendant to walk backwards toward Officer Hauke. Officer
Hauke did not draw his weapon. (6 RR 173). A College Station
officer then took the defendant and placed him in the back of a
patrol car. (6 RR 162).

14. Officer Hauke requested that 911 Dispatch determine who the
registered owner of the trailer was; the owner was Nathan Kleinman
with Woodbolt Industries located in downtown Bryan. (6 RR 163).

15. The Court finds that the testimony of Officer James Hauke is
credible and reliable.

16. The persons, who reported the theft of trailer, went to the
Harley Davidson parking lot and waited to be interviewed. (6 RR
163). Officer Hauke went to that location, indentified them and
obtained written statements from them. (6 RR 163-164).

17. The Court finds that the reporting persons placed themselves
in a position to be held accountable for their report of a stolen trailer.
Consequently, the Court finds that the information provided by the
reporting persons is credible and reliable.

18.   The defendant did not testify.

19. The Court finds that the following credible and reliable
information, as detailed above, provided specific, articulable facts
that, combined with rational inferences from those facts, would lead
Officer Hauke reasonably to conclude that the defendant detained
was currently engaged in or had been engaged in criminal activity,
namely:

     On March 9, 2013 at 12:40 a.m., reporting persons witnessed

                                   51
      the suspect vehicle “driving crazy” and believed that the person
      driving the suspect vehicle had stolen the trailer attached.
            The reporting persons described the suspect vehicle towing
      the stolen trailer as a black dually pickup with a trailer attached to
      the back.
            The reporting persons identified themselves as driving a
      maroon Dodge Charger. They followed the suspect vehicle and
      provided its ongoing location to 911 Dispatch.
            Officer Hauke corroborated the reporting persons’
      information before stopping the suspect vehicle.

                          CONCLUSIONS OF LAW

1.    The Fourth Amendment of the United States Constitution states:

      The right of the people to be secure in their persons, houses, papers,
      and effects, against unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the
      place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.

2.    As explained in Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App.
      2011):

             Under the Fourth Amendment, a warrantless detention of the
      person that amounts to less than a full-blown custodial arrest must
      be justified by a reasonable suspicion. A police officer has
      reasonable suspicion to detain if he has specific, articulable facts
      that, combined with rational inferences from those facts, would lead
      him reasonably to conclude that the person detained is, has been, or
      soon will be engaged in criminal activity. This standard is an
      objective one that disregards the actual subjective intent of the
      arresting officer and looks, instead, to whether there was an
      objectively justifiable basis for the detention. It also looks to the
      totality of the circumstances; those circumstances may all seem
      innocent enough in isolation, but if they combine to reasonably
      suggest the imminence of criminal conduct, an investigative
      detention is justified. “[T]he relevant inquiry is not whether
      particular conduct is innocent or criminal, but the degree of

                                        52
      suspicion that attaches to particular non-criminal acts.” Moreover,
      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.” A 911 police dispatcher is ordinarily regarded as a
      “cooperating officer” for purposes of making this determination.
      Finally, 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. In such a scenario,
      the only question is whether the information that the known citizen-
      informant provides, 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.
Derichsweiler v. State, 348 S.W.3d at 914-915 (footnotes omitted).

3.    Based on the totality of the circumstances, the stop of defendant’s vehicle
      was a temporary investigative detention that was reasonable under the
      Fourth Amendment. See Derichsweiler v. State, 348 S.W.3d at 915-917
      (citizens report of strange, non-criminal behavior by defendant gave rise to
      a reasonable suspicion that he was about to engage in criminal activity);
      Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim. App. 2005)(officers,
      who are apprised of detailed facts from citizen-eyewitnesses, are not
      required to observe suspects and wait until additional suspicious acts are
      committed); Mount v. State, 217 S.W.3d 716, 727-729 (Tex. App.—
      Houston [14th Dist.] 2007, no pet.)(officer had reasonable suspicion for
      investigatory detention of defendant who was driving vehicle similar to
      that described in radio dispatch as possibly stolen).

4.    A defendant claiming relief under both the federal and state constitutions
      must “analyze, argue or provide authority to establish that his protection
      under the Texas Constitution exceeds or differs from that provided to him
      by the Federal Constitution.” Arnold v. State, 873 S.W.2d 27, 33 (Tex.
      Crim. App. 1993). Because the defendant in this case did not analyze,
      argue, or provide authority to establish that his protection under Tex.
      Const. art. I, §9 exceeds or differs from the protection provided to him by
      the Fourth Amendment, his state constitutional argument should not be
      addressed. See Olivarez v. State, 171 S.W.3d 283, 288 fn. 2 (Tex. App.—
      Houston [14th Dist.] 2005, no pet.)(court reviewed alleged violation under

                                        53
      Fourth Amendment but refused to address alleged violation under Tex.
      Const. art. I, §9).

                                     ORDER

      IT IS THE ORDER OF THE COURT that the Defendant’s Motion
      to Suppress Evidence is DENIED. (6 RR 183).

(See 9/23/15 Supp. CR, pages 1-7.)

(1) Applicable law and discussion: The detaining officer did corroborate the
witnesses tip.

      Appellant complains that his traffic stop was not justified because the

officer failed to gather factual corroboration of a concerned citizen’s 911 call

reporting Appellant’s criminal behavior. (Appellant’s brief, p. 15-16.) He alleges

that Officer Hauke “did nothing to corroborate that report before stopping

[Appellant].” (Appellant’s brief, p. 16). “The corroboration only occurred

following the unlawful stop.” (Appellant’s brief, p. 16).

      However, the record reflects that Officer Hauke did in fact corroborate the

witnesses’ tip before initiating the traffic stop. Hauke testified that he knew

which direction to travel in order to locate the suspect because the witnesses were

“feeding” dispatch information, and dispatch was updating law enforcement with

information from the reporting witnesses. (6 RR 160-61, 166, 172, 175). Using

the witnesses’ vehicle description from dispatch, Hauke spotted the witness’s

Maroon Dodge Charger and the suspect’s black dually pickup on Highway 6. (6

RR 160-161). Hauke began his pursuit when the witnesses reported that the

                                        54
suspect was leaving the city of Bryan and entering the city of College Station. (6

RR 161). When Officer Hauke caught up to the suspect, Hauke saw that the

suspect was already traveling “deep” in College Station. (6 RR 161, 172). Hauke

also observed the witness’s Maroon charger following behind the suspect’s black

dually truck with the described stolen cargo trailer, attached. (6 RR 160-61, 164,

175).

        Officer Hauke’s corroboration was analogous to the corroboration by the

officer in Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). In

Derichsweiler, the Court of Criminal Appeals approved corroboration in a similar

context. Id. at 912. The Court of Criminals Appeals stated that, “Officer Carraby

was able to identify the [appellant’s] vehicle from the specific description

provided to him by the [witnesses] at the location they reported, thereby

corroborating the tip he had received.” Id. Because Officer Hauke similarly

corroborated the reporting witnesses tip in the instant case, Appellant’s complaint

that Officer Hauke “did nothing to corroborate that report before stopping

[Appellant]” (Appellant’s brief, p. 16) is baseless. Appellant’s first point of error

should be overruled.

(2) The witness’s tip was sufficiently reliable to justify the traffic stop.

        Law enforcement’s traffic stop is lawful so long as the stop is justified by

reasonable suspicion. Id. at 914 (whether or not a traffic stop was supported by



                                          55
sufficient reasonable suspicion depends on whether the “totality of the

circumstances” amounted to “an objectively justifiable basis for the detention.”)

The reasonable suspicion of a traffic stop is determined by the collective sum of

all the cooperating officers’ knowledge because “circumstances may all seem

innocent enough in isolation, but if they combine to reasonably suggest the

imminence of criminal conduct, an investigative detention is justified.” Id. This

includes any facts known by a 911 dispatch operator. See Id.

In Derichsweiler, the court stated that:

        [T]he 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. A 911 police dispatcher is ordinarily regarded as a
        ‘cooperating officer’ for purposes of making this determination.
Id. at 914-15.

The court also clarified that even when the dispatch operator does not pass on all

of the witness’s information; those facts are still part of the justification for the

traffic stop:

       It matters not that the dispatcher did not pass all of these details
       along to the responding officers. In assessing reasonable suspicion,
       vel non, a reviewing court looks to the totality of objective
       information known collectively to the cooperating police officers,
       including the 911 dispatcher. The issue in this case boils down,
       therefore, simply to whether the totality of that reliable information
       provided 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.

                                           56
Id. at 915-16.

      Some tips are considered inherently reliable and therefore justify a

warrantless detention. See Martinez v. State, 261 S.W.3d 773, 776 (Tex. App.—

Amarillo 2008, pet. ref’d). A tip is inherently reliable when the witness provides

their personal identifying information and is willing to be held accountable for

his tip, and whose only contact with the police results from his witnessing a

criminal act. Id. If the tip qualifies as inherently reliable, that information

warrants law enforcement’s belief that a temporary detention is justified. Id.

In Derichsweiler, the court ultimately held that:

       There is no issue in this case with respect to reliability of the
      information supplied by the citizen-informants-the Holdens. As
      the trial court found, they identified themselves to dispatch and
      remained answerable for their report after the fact. That report was
      based upon their own first-hand perceptions, many of which they
      continuously and contemporaneously narrated to the police via the
      911 dispatcher. Nor do we hesitate to include what the Holdens
      [reporting persons] reported as part of the objective information that
      [the detaining officer] was entitled to rely upon in making the
      investigative stop. Even if [the detaining officer was not
      personally aware of the detailed information the [reporting
      persons] had reported to substantiate their perception that the
      appellant’s car was suspicion, the 911 dispatcher was.

Derichsweiler, 348 S.W.3d at 915. (emphasis added).

A tip that is inherently reliable requires less corroboration. Brother v. State, 85

S.W.3d 377, 381 (Tex. App.—Fort Worth 2002), aff’d, 166 S.W.3d 255 (Tex.

Crim. App. 2005). In Brother, the court of appeals stated:

                                         57
             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. A tip also
      deserves great weight if the person puts herself in a position to be
      held accountable for her intervention. Furthermore, a person who
      is not connected with law enforcement or is not a paid informant
      is considered inherently trustworthy when she advises the police
      that she suspects criminal activity has occurred or is occurring.
             Appellant points out that [Officer] Williams did not observe
      him weaving, speeding, or driving erratically and asserts that
      [Officer] [Officer] Williams did not know any facts as a result of
      Spencer’s 911 call that would have distinguished appellant from any
      other ordinary driver and thereby justified the stop. Appellant further
      contends that the 911 dispatcher did not give [Officer] Williams any
      information that would indicate that Spencer’s information was
      reliable.
             Even though [Officer] Williams did not personally observe
      appellant speeding or driving in an erratic manner, [Officer]
      Williams did have sufficient information to warrant the investigative
      detention. Spencer specifically explained to the 911 dispatcher why
      she believed appellant might be driving while intoxicated. She also
      described appellant’s car and gave the dispatcher his driver’s license
      plate number. Based on this information, the dispatcher contacted
      [Officer] Williams. The three stayed in constant contact until
      [Officer] Williams pulled appellant over, and the dispatcher updated
      [Officer] Williams with the information Spencer provided as the call
      progressed. [Officer] Williams also corroborated Spencer’s
      information by verifying appellant’s driver’s license plate number
      before initiating the stop. Viewing this evidence in the light most
      favorable to the trial court’s ruling, we hold that the trial court
      properly applied the law in concluding, based on the totality of the
      circumstances, that the stop of appellant’s vehicle was valid

Brother, 85 S.W.3d at 381-82.

      In Appellant’s case, the witness’s tip justified Officer Hauke’s detention.

The eye-witnesses continuously updated the 911 dispatcher for nineteen-minutes



                                        58
as they followed the suspect who was “driving crazy” down the streets and the

highway. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call); (6

RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes.) The witness gave

specific details describing the suspect’s direction of travel, and landmarks and

buildings the suspect was driving past. (6 RR 158; See 9 RR State’s Pre-Trial

Exhibit 3: Audio of 911 call); (6 RR 157; See 9 RR State’s Pre-Trial Exhibit 2:

CAD Notes.)

      The eye-witness gave dispatch his identifying information including his

cell phone and full name. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio

of 911 call); (6 RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes.) He

also provided specific descriptions of his maroon Dodge Charger, the suspect’s

black Chevrolet dually, and the stolen white cargo trailer with the license plate

number. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call); (6

RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes.)

      When the 911 dispatcher requested the witnesses to turn on the flashers on

their vehicle to signal the approaching officers, and the witness abided by the

dispatchers request to provide updating information and stay at the scene. (6 RR

158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call); (6 RR 157; See 9

RR State’s Pre-Trial Exhibit 2: CAD Notes.) The witness waited around after the

stop so that officers could speak with them about the offense. (6 RR 163, 177).



                                        59
      The eye-witnesses tip was inherently reliable because the “witness

provided their personal identifying information and [was] willing to be held

accountable for his tip, and whose only contact with the police results from his

witnessing a criminal act.” Martinez v. State, 261 S.W.3d at 775.

      Thus, Appellant’s second point of error is without merit and should be

overruled.

    STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 3

      Appellant’s judgment of conviction incorrectly reflects the
      degree of offense as a second-degree felony instead of a state-jail
      felony; the judgment should be reformed.

      Appellant states that he was convicted of the state-jail felony offense: theft

$1,500-$20,000, but his Judgment of Conviction mistakenly reflects that his

offense was enhanced to a second-degree felony. (Appellant’s brief, p. 17-20; CR

35)6. Appellant does not dispute the propriety of the enhanced punishment range-

he only complains of the clerical error in the judgment. (Appellant’s brief, p. 17-

20). The State agrees. The State properly enhanced Appellant’s punishment range

to the level of a second-degree felony, but the degree of Appellant’s underlying

offense remained a state-jail felony. (CR 5); Tex. Penal Code § 31.04(e)(4)(a);

See Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011)(holding that

the habitual offender statute Tex. Penal Code §12.42 increases the range of

6
       Specifically, the judgment contains the following erroneous notation, “Degree of
Offense: State Jail Felony Enhanced to 2nd Degree Felony.” (CR 35).

                                          60
punishment applicable to the primary offense; it does not increase the severity

level or grade of the primary offense.

      Appellant was indicted for the state-jail felony offense of theft $1,500-

$20,000. Tex. Penal Code §31.04(e)(4)(a); (CR 5). Pursuant to the Habitual

Offender statute for state-jail felonies, Appellant’s prior felony convictions

qualified him for the heightened punishment range upon conviction. Tex. Penal

Code §12.425(b); See State’s Exhibits 25, 26, 28; (9 RR 62-68, 74-77, 87-92);

(CR 15-16). The State gave Appellant proper notice of its intent to enhance

Appellant’s punishment to the range for second-degree felonies. (CR 15). Tex.

Penal Code §12.425(b) authorized the State’s punishment enhancement:

      If it is shown on the trial of a state jail felony…that the defendant
      has previously been finally convicted of two felonies other than a
      state jail felony… and the second previous felony conviction is for
      an offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be punished
      for a felony of the second degree.

TEX. PENAL CODE. §12.425(b)

      Accordingly, the trial court properly sentenced Appellant to 15 years under

the enhanced second-degree felony range of punishment. (CR 35). However, the

character of his offense did not change to a second-degree, as mistakenly

reflected in the Judgment of Conviction. In alignment with the Court of Criminal

Appeals decision in Ford v. State, supra, this Court addressed the same issue in

Romo v. State, no. 10-14-00036-CR, 2014 WL 6609050, at *1 (Tex. App.—

                                         61
Waco Nov. 20, 2014, no pet.). This Court in Romo explained that an

enhancement allegation, “merely enhances the punishment range of the offense to

that of a second-degree felony without changing the felony degree of the offense

itself.” Id. Thus, even though Appellant’s punishment range was enhanced to that

for a second-degree felony, the degree of his offense for theft $1,500-$20,000

never changed from a state-jail felony. As a result, the Judgment of Conviction

indicating that Appellant’s offense was a second-degree felony is incorrect and

should be modified. (CR 35); See Id. Therefore, this court should reform

Appellant’s judgment of conviction to show that his offense was a state-jail

felony.

      This Court has the authority to modify Appellant’s judgment in order to

reflect the proper offense degree. See Id. (enhancement allegations only change

the range of punishment, but do not change the degree of the offense; therefore

the reviewing court can modify the judgment to reflect the appropriate offense

degree and then affirm the modified judgment.) The record reflects that Appellant

was punished within the proper, applicable punishment range based on his crime

and criminal history, yet he was convicted of a state-jail felony. See TEX. PENAL

CODE 31.03(e)(4)(A); (CR 35). Therefore, this Court should modify Appellant’s

Judgment of Conviction to show that the degree of his offense was a state-jail

felony, rather than a second-degree felony.



                                        62
                                      PRAYER

      Wherefore, premises considered, the State of Texas respectfully prays that

the order of the trial court be in all things affirmed.

                                                Respectfully submitted,

                                                JARVIS PARSONS
                                                DISTRICT ATTORNEY
                                                BRAZOS COUNTY, TEXAS

                                                Respectfully submitted,


                                                /s/   Maritza Sifuentez
                                                Maritza Sifuentez
                                                Assistant District Attorney
                                                Brazos County, Texas
                                                300 East 26th Street, Suite 310
                                                Bryan, Texas 77803
                                                (979) 361-4320
                                                misfuentez@brazoscountytx.gov
                                                State Bar No. 24082124


                           CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the above and foregoing

State’s Brief was served electronically to Rick Wetzel, attorney for Appellant, at

wetzel_law@1411west.com on this the 4th day of December, 2015.


                                                /s/   Maritza Sifuentez
                                                Maritza Sifuentez




                                           63
       CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

     I do hereby certify that the foregoing document has a word count of 14,703

based on the word count program in Word 2010.


                                          /s/   Maritza Sifuentez
                                          Maritza Sifuentez
                                          State Bar No. 24082124
                                          msifuentez@brazoscountytx.gov




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