Reversed and Remanded; Opinion Filed December 4, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01460-CR

                              THE STATE OF TEXAS, Appellant
                                          V.
                               GEORGE THOMPSON, Appellee

                      On Appeal from the County Criminal Court No. 6
                                   Dallas County, Texas
                          Trial Court Cause No. MA17-13978-G

                              MEMORANDUM OPINION
                           Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Nowell

       The State appeals an order granting George Thompson’s motion to suppress the evidence

in this driving while intoxicated case. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). The

State contends the trial court abused its discretion because the evidence established the police

officer had reasonable suspicion to stop Thompson’s vehicle shortly after a citizen called 911 to

report a hit and run accident with a vehicle similar to Thompson’s. We conclude the trial court

abused its discretion, reverse the trial court’s order, and remand for further proceedings.

                                          BACKGROUND

       Thompson was stopped by an officer investigating a possible hit and run reported by a

911 caller a few minutes earlier. The officer noticed signs of intoxication and arrested appellant

for driving while intoxicated. Appellant filed a motion to suppress the evidence on the basis that
the officer lacked reasonable suspicion to stop his vehicle. The evidence at the hearing on the

motion consists of the testimony of Sergeant David Podany, an audio recording of the 911 call,

video recordings of Podany’s in-car dash camera and body camera, and two maps of the area.

        On October 4, 2017, at 11:58 p.m., Miyana Gibbons called 911 and reported, “I am going

down Belt Line. A car just hit my car and kept going.” She reported she was presently “crossing

over Hampton,” at the intersection of “Belt Line and Hampton in Desoto.” Gibbons told the

operator she had been following the car, but said “he’s gone . . . I’m not gonna be able to catch

up with him.” She described the car as “a red, like, Challenger-type car.” Gibbons said the car

was not going toward Interstate 35, but “the other way, like going towards Cedar Hill.” Gibbons

did not see any part of the license plate. She saw that the driver “was a guy.” When asked what

his race was, Gibbons said the driver was “black.” Gibbons gave her name, phone number, and a

description of her car to the operator and agreed to stay at a Walgreen’s at the intersection of Belt

Line and Westmoreland until police arrived.

        During argument on the motion, Thompson’s attorney argued the 911 caller said they

were past Camp Wisdom, which is not near the intersection of Hampton and Belt Line, and this

statement called the caller’s reliability into question. Gibbons did not mention Camp Wisdom on

the 911 recording, yet the court and the attorneys appear to have accepted the representation. The

trial court asked to hear from Gibbons, the 911 caller. The State informed the court that Gibbons

was not present for the hearing and argued she was deemed reliable because she identified

herself to the 911 operator. The court said she wanted to hear from the caller and would reset the

hearing after the arresting officer testified.

        Cedar Hill Police Sergeant Podany testified he was on patrol in the area of Belt Line

Road between Cannady and Joe Wilson Road in Cedar Hill. He received a dispatch from the

Desoto Police Department about Gibbons’s 911 call. Podany knew from the dispatch that Desoto

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officers had responded to a hit-and-run call at 11:58 p.m. in the area of Hampton Road and Belt

Line Road. The suspect vehicle was a red Dodge “Challenger-type vehicle” travelling westbound

on Belt Line. Podany was in the general area of where the vehicle was heading and learned from

the dispatch that the car was driven by a black male. At 12:02 a.m., Podany pulled over a red

Dodge Charger travelling west on Belt Line to investigate the possible hit and run accident.

Podany testified he would have stopped either a Challenger or a Charger based on the dispatch.

Podany made contact with Thompson and asked about the reported hit-and-run accident. During

the encounter, Podany noticed signs of intoxication and ultimately arrested Thompson for DWI.

       Podany also testified there were few cars on the road at the time. His in-car dash camera

showed there was very little traffic when he saw Thompson’s vehicle. The speed limit in that

area is 45 miles per hour. Podany testified that at that time of night, with no traffic, it could take

five minutes to travel from Hampton Road to the location of the stop, “[v]ersus being at noon

and driving in that area, it could take 15 minutes.” Based on a map of the area, Podany estimated

it was 4.8 miles from the intersection of Hampton Road and Belt Line to the gas station where

Thompson was stopped. The map contains an annotation indicating a driving time of ten

minutes.

       Two months later, the hearing resumed, but no additional evidence was admitted. The

State informed the trial court that it had attempted to contact Gibbons and spoke with her mother.

Gibbon’s mother reported that she had moved to Louisiana. The State determined to proceed

without her. Thompson’s attorney objected based on the right to confront the witness and test her

reliability. After additional argument from counsel, the trial court granted the motion to suppress.

       The trial court signed a written order granting the motion to suppress. It found the officer

stopped Thompson because he matched the description given in the 911 call and “because the

911 caller did not appear in court to be confronted by the defendant, there was no reasonable

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suspicion to stop the defendant.”     The trial court also signed written findings of fact and

conclusions of law. Those findings include:

              A 911 caller reported that “a person driving a red Challenger type car clipped her
               vehicle at or near Hampton Road and Camp Wisdom Road and did not stop.”
              The caller lost the vehicle and later saw it near Belt Line Road and Hampton
               Road going towards Cedar Hill.
              The caller did not see the license plate and thought the driver was a “Black guy.”
              The 911 call was placed at 11:58 p.m. and the Cedar Hill Police stopped
               Thompson at 12:02 a.m.
              The court recessed the original hearing “to allow the State to secure their witness,
               the 911 caller.” When the hearing resumed, the State explained it had contacted
               her mother who said she moved to Louisiana. “However, the State had not had
               contact with the 911 caller who did provide her name and number. Also, she was
               not present in court for the hearing.”
       The court cited the law regarding corroboration necessary for anonymous tips to support

reasonable suspicion then applied the law to the facts. The court concluded Thompson was

stopped based only on the “radio communication of a citizen-informant regarding a ‘red

challenger type’ vehicle with a ‘Black guy.’” The court concluded that the officer stopped a red

Charger, not a red Challenger, and “did not have corroborating information and stopped the

wrong type of vehicle for no other reason than responding to the radio call.” The court found that

“in the absence of the 911 caller, no one can corroborate the caller’s identification of the vehicle

that allegedly struck her vehicle, and the Defendant has been denied the ability to confront a

necessary witness against him.” The court also found:

       the call was made at 11:58 p.m. while she was at the intersection of Hampton
       Road and Beltline Road which is approximately 10 minutes (in light to moderate
       traffic) from the location of the stop which was made at 12:02 a.m., 4 minutes
       later which is not physically possible; especially since the 911 caller stated in her
       call that the driver of the suspect vehicle was not speeding.

       The court concluded the officer did not have credible information to make this stop and

lacked reasonable suspicion that a crime had been committed.



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                                      STANDARD OF REVIEW

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

standard. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We review the trial

court’s factual findings for an abuse of discretion, but review the trial court’s application of the

law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

afford almost complete deference to the trial court’s determination of historical facts, “especially

if those are based on an assessment of credibility and demeanor.” Brodnex, 485 S.W.3d at 436

(quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). We give the same

deference to the trial court’s conclusions with respect to mixed questions of law and fact that turn

on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We

review mixed questions of law and fact that do not turn on credibility and demeanor as well as

purely legal questions de novo. Brodnex, 485 S.W.3d at 436. Although the trial court is the sole

trier of fact and judge of the credibility of the witnesses and the weight to be given their

testimony, Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010), we review de novo

“whether the totality of the circumstances is sufficient to support an officer’s reasonable

suspicion of criminal activity.” Brodnex, 485 S.W.3d at 437 (quoting Crain, 315 S.W.3d at 48–

49).

       We review the record in the light most favorable to the trial court’s ruling and will

reverse its decision only if it is outside the zone of reasonable disagreement. State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006). When a trial court makes explicit fact findings, the

appellate court determines whether the evidence (viewed in the light most favorable to the trial

court’s ruling) supports these fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). The appellate court then reviews the trial court’s legal ruling de novo unless the trial

court’s supported-by-the-record explicit fact findings are also dispositive of the legal ruling. Id.


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                                           DISCUSSION

       Under the Fourth Amendment, a warrantless detention of a person that amounts to less

than a custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. State, 348

S.W.3d 906, 914–15 (Tex. Crim. App. 2011). 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. Id. 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. Id. 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. Id. “[T]he

relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of

suspicion that attaches to particular non-criminal acts.” Id. (quoting Woods v. State, 956 S.W.2d

33, 38 (Tex. Crim. App. 1997)).

       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.” Id. (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). A 911 police

dispatcher is ordinarily regarded as a “cooperating officer” for purposes of making this

determination. Id. 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. Id. 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


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activity is afoot. Id.

        The trial court in this case treated the 911 caller as anonymous and therefore required

more corroboration than that required for an identified citizen-informant. See Martinez v. State,

348 S.W.3d 919, 923 (Tex. Crim. App. 2011) (inverse relationship exists between reliability of

informant and amount of corroboration required; “the less reliable the tip, the more information

is needed”); Taflinger v. State, 414 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2013, no

pet.). However, the record establishes that Gibbons identified herself, gave her phone number

and a description of her car, and agreed to wait for officers. Thus, the trial court erred in applying

the anonymous-tip standard to the facts of this case. Because Gibbons identified herself and

could be held to account for the accuracy and veracity of her report, her report may be regarded

as reliable. Martinez, 348 S.W.3d at 923 (“[W]hen the informant provides self-identifying

information that makes himself accountable for the intervention, the degree of reliability

significantly improves.”); Derichsweiler, 348 S.W.3d at 915; Brother v. State, 166 S.W.3d 255,

257–58 (Tex. Crim. App. 2005).

        The trial court found the 911 caller reported a hit and run accident “at or near Hampton

Road and Camp Wisdom Road.” However, the recording of the 911 call establishes that Gibbons

never mentioned Camp Wisdom Road and never reported that the accident occurred near there.

Gibbons reported she was on Belt Line road and stated “a car just hit my car and kept on going.”

We conclude the record does not support the fact finding that the caller reported the accident

occurred at or near Hampton Road and Camp Wisdom Road. Regarding the trial court’s finding

that Gibbons stated the driver of the suspect vehicle was not speeding, Gibbons did not say on

the recording that the other driver was not speeding. Indeed, her only reference to the speed of

the other vehicle was “he’s gone . . . I’m not gonna be able to catch up with him.”

        The trial court concluded that, in the absence of the 911 caller, the “Defendant has been

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denied the ability to confront a necessary witness against him.” However, this Court has held that

the Confrontation Clause does not apply at a pretrial suppression hearing. Vanmeter v. State, 165

S.W.3d 68, 74 (Tex. App.—Dallas 2005, pet. ref’d). Further, any additional information the

caller might provide at the hearing would not have been available to the officers at the time of

the stop and would not be relevant to the reasonable suspicion inquiry. Instead, the trial court

should have focused on “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, 348 S.W.3d at 915.

       The trial court’s finding that police stopped the “wrong type” of vehicle is not supported

by the record. The 911 caller described the vehicle as a red “Challenger-type” vehicle. Podany

stopped a red Charger traveling in the reported direction four minutes after the call. Podany

testified he would not have “changed [his] view if the car that was ultimately pulled over was a

Challenger and not a Charger.” The trial court recognized the similarity between a Challenger

and Charger, at one point saying, “In my mind, there is nothing so greatly different between a red

Challenger and a red Charger that the officer wouldn’t be wrong pulling one or the other over

and at least being able to investigate.” Even if the police were mistaken about the vehicle, the

mistake would not negate the facts supporting a reasonable suspicion that is was the correct

vehicle. See Cornejo v. State, 917 S.W.2d 480, 483 (Tex. App.—Houston [14th Dist.] 1996, pet.

ref’d) (mistaken identification of defendant as perpetrator of drive-by shooting did not negate

initial reasonableness of officer’s probable cause determination). “An investigatory detention or

an arrest is not invalid merely because an officer relies upon reasonably trustworthy information

that later proves to be erroneous.” Mount v. State, 217 S.W.3d 716, 728 (Tex. App.—Houston

[14th Dist.] 2007, no pet.) (officer had reasonable suspicion to stop “similar” “tan or goldish

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colored or silver, light colored” Cadillac pickup based on report of stolen white Cadillac pickup

in the vicinity). The officer in Mount, “after receiving the report over his radio, was justified in

searching for and stopping a vehicle that was similar to the vehicle described by the caller.” Id.

        The record shows that Gibbons provided the 911 operator with the following facts:

                She was on Belt Line Road crossing over Hampton;
                A car hit her and kept on going;
                The other car was “gone” and she was not going to be able to catch up with him;
                The car was a red “Challenger-type” car;
                The care was heading west on Belt Line towards Cedar Hill;
                The driver was a black male.
        Podany testified he knew from the 911 dispatch that there was a hit-and-run call; officers

were dispatched to the area of Hampton and Belt Line; the suspect car was traveling westbound

on Belt Line; the car was a red “Challenger-type vehicle”; the driver was a black male; and the

car had been in the area of Belt Line and Hampton around 11:58 p.m. Additionally, Podany

knew he was on patrol on Belt Line in the area where the vehicle was traveling; there were few

cars on the road; and he would have stopped either a red Challenger or a red Charger based on

the dispatch.

        Based on the totality of the circumstances, it was objectively reasonable for Podany to

suspect that a red “Challenger-type” vehicle travelling west on Belt Line four minutes after the

call, when there was little traffic on the road, could have been the vehicle involved in the

reported hit-and-run accident. He was justified in stopping the vehicle to verify this reasonable

suspicion.

        We conclude the trial court abused its discretion by granting the motion to suppress. We

sustain the State’s issue.




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                                        CONCLUSION

       We reverse the trial court’s order granting the motion to suppress and remand this case

for further proceedings.




                                                 /Erin A. Nowell/
                                                 ERIN A. NOWELL
                                                 JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181460F.U05




                                            –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the County Criminal Court
                                                     No. 6, Dallas County, Texas
No. 05-18-01460-CR         V.                        Trial Court Cause No. MA17-13978-G.
                                                     Opinion delivered by Justice Nowell.
GEORGE THOMPSON, Appellee                            Justices Myers and Osborne participating.

       Based on the Court’s opinion of this date, the trial court’s November 15, 2018 order
granting motion to suppress is REVERSED and the cause REMANDED for further
proceedings.


Judgment entered this 4th day of December, 2019.




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