                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00464-CR
                              NO. 02-11-00465-CR
                              NO. 02-11-00466-CR


THOMAS LORIS                                                           APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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       FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Thomas Loris brings four points challenging his two convictions

for criminal trespass and his conviction for escape. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On August 15, 2010, Officer Salim Plumb issued Loris a written criminal

trespass warning for the Austin Ranch apartment and townhome community.

      1
       See Tex. R. App. P. 47.4.
Nine days later, on August 24, 2010, Officer Plumb was dispatched back to the

Austin Ranch community to investigate a criminal trespass complaint involving

Loris. When Officer Plumb arrived at the property, he saw Loris‘s vehicle being

driven and stopped it. Officer Plumb arrested Loris for criminal trespass after he

admitted that he had knocked on the door to his girlfriend‘s apartment, which was

located in Austin Ranch.

      About a month later, on September 29, 2010, Loris, Jeremy Love, and

Love‘s girlfriend were at a restaurant and bar located in Austin Ranch when Loris

decided to go to Brooke Dobbs‘s apartment, which was also located in Austin

Ranch.    Dobbs later contacted Love and asked him to get Loris out of her

apartment. When Love attempted to do so, Loris acted ―a little irrational,‖ and

Dobbs‘s neighbor, Jason Phillips, was awakened by the activity and went outside

to investigate. Loris became upset, hit himself in the head, and acted like he

wanted to fight Phillips.   The commotion awoke Officer Kyle Koiner, another

resident of the apartment complex; he came outside wearing a shirt and hat that

said ―police,‖ had his gun in his hand, and ordered everyone onto the ground.

Everyone but Loris complied with the command; Loris ―kept on getting in a

lunging stance‖ and told Officer Koiner, ―[F]uck you, you‘re not a police officer.‖

Officer Graham Bloodworth arrived shortly thereafter and handcuffed a ―very

aggressive‖ and ―very belligerent‖ Loris after he ran towards Officer Bloodworth‘s

police cruiser. Police ultimately arrested Loris for criminal trespass.




                                          2
      On the way to jail, Loris kicked one of the cruiser‘s rear windows until it

broke and, still handcuffed, jumped out of the window feet first.            Officer

Bloodworth stopped the vehicle and grabbed Loris, who was already on his feet.2

      The jury convicted Loris of both criminal trespass offenses and the escape

offense. The trial court sentenced him to 120 days in jail, probated for twenty-

four months, and a $500 fine for the August 24, 2010 criminal trespass

conviction; 180 days in jail, probated for twenty-four months, and a $500 fine for

the September 29, 2010 criminal trespass conviction; and 250 days in jail for the

September 29, 2010 escape conviction.

                             III. REASONABLE SUSPICION

      In his first point, Loris argues that the trial court erred by concluding that

Officer Plumb had reasonable suspicion to stop Loris‘s vehicle on August 24,

2010, and, consequently, by permitting Officer Plumb to testify at trial about the

statements that Loris made during the stop. Loris specifically contends that the

stop was illegal because Officer Plumb had no warrant and did not observe Loris

commit any offense. Specifically, Loris states:

                                 Point of Error One

                      In Cause No. CR-2010-06514-C, the trial court
               violated Appellant‘s federal and state constitution right
               against unreasonable searches and seizures by
               overruling Appellant‘s Motion to Suppress the stop and
               fruits of Appellant‘s detention and allowing as evidence
               a non-Mirandized statement over Appellant‘s objection.

      2
          According to Loris, he suffered road rash and had a collarbone ―out of
place.‖

                                          3
The argument is unpersuasive.

      The State provides in its brief:

                   The Fourth Amendment forbids unreasonable
            searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88
            S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898 (1968). If a
            police officer lacks probable cause to arrest, the officer
            can briefly detain that person and investigate
            circumstances that provoke suspicion when his
            observations lead him to reasonably suspect that a
            particular person has committed, is committing, or is
            about to commit a crime. Berkemer v. McCarty, 468
            U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317,
            334 (1984); Terry, 392 U.S. at 10 (1968); State v.
            Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011).
            To justify this intrusion, ―the police officer must be able
            to point to specific and articulable facts which, taken
            together with rational inferences from those facts,
            reasonabl[y] warrant that intrusion.‖ Terry, 392 U.S. at
            21 (1968). The facts used to briefly detain a person
            must amount to more than a hunch. Brother v. State,
            166 S.W.3d 255, 257 (Tex. Crim. App. 2005).

      In addition, in the case of Atwater v. City of Lago Vista, the Court held that

the Fourth Amendment does not forbid a warrantless arrest for a minor criminal

offense, such as a misdemeanor seatbelt violation punishable only by a fine. 532

U.S. 318, 323, 354, 121 S. Ct. 1536, 1541, 1557 (2001).

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

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court‘s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of



                                         4
credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

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

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      An officer may conduct a lawful, warrantless temporary detention when he

or she has reasonable suspicion to believe that an individual is violating the law.

Crain v. State, 315 S.W.3d 43, 46–47, 52 (Tex. Crim. App. 2010) (defendant,

while walking in neighborhood, appeared suspicious to police officer, who said to

defendant, ―Come over here and talk to me‖; officer smelled what he thought was

the odor of recently smoked marijuana coming from defendant‘s clothes and

breath; then an immediate pat-down search revealed defendant was in

possession of a firearm).    Reasonable suspicion exists when, based on the

totality of the circumstances, the officer has specific, articulable facts that when

combined with rational inferences from those facts, would lead him to reasonably

conclude that a particular person is, has been, or soon will be engaged in

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

      An evaluation of Fourth Amendment search and seizure protections was

made in the case of Wood v. State, in affirming the conviction and the initial

search, in which the court observed:

            The Fourth Amendment has been held not to require a
      policeman who lacks a precise level of information necessary for
      probable cause to arrest to simply shrug his shoulders and allow
      crime to occur or a criminal to escape. Adams v. Williams, 407 U.S.
      143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Circumstances short
      of probable cause for arrest may justify temporary detention for
                                         5
      investigation and questioning. Baity v. State, 455 S.W.2d 305 (Tex.
      Cr. App. 1970), cert. denied, 400 U.S. 918, 91 S. Ct. 180, 27 L. Ed.
      2d 158. Thus, neither tests of reliability demanded for showing of
      probable cause nor showing of probable cause is required to justify
      an investigative stop. United States v. Rollerson, 491 F.2d 1209
      (5th Cir. 1974). A brief stop of a suspicious individual in order to
      determine his identity or to maintain status quo momentarily while
      obtaining more information may be reasonable in light of facts known
      to the officer at the time. Adams v. Williams, supra.

Wood v. State, 515 S.W.2d 300, 305–06 (Tex. Crim. App. 1974).

      Further, an officer may rely on information received from a citizen, rather

than his direct observation, so long as the citizen‘s statement is reasonably

corroborated by other matters within the officer‘s knowledge. Brother v. State,

166 S.W.3d 255, 258–59 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1150

(2006); Turley v. State, 242 S.W.3d 178, 181 (Tex. App.—Fort Worth 2007, no

pet.). Corroboration means that the officer confirms enough facts to conclude

reasonably, in light of the circumstances, that the information provided is reliable

and a detention is justified. Brother, 166 S.W.3d at 259 n.5; Turley, 242 S.W.3d

at 181. A citizen‘s tip deserves great weight when there is a detailed description

of the wrongdoing along with a statement that the event was witnessed firsthand,

when a citizen puts herself in a position to be held accountable for her intentions,

or when the citizen is not connected with the police or a paid informant. Turley,

242 S.W.3d at 181. ―To require officers who are apprised of detailed facts from

citizen-eyewitnesses to observe suspects and wait until additional suspicious

acts are committed, would be foolish and contrary to the balance of interests

struck in Terry and its progeny.‖ Brother, 166 S.W.3d at 259.


                                         6
      Here, Officer Plumb received the details about the criminal trespass

complaint when he was dispatched to Austin Ranch. He heard Loris‘s name,

knew that Loris had previously been warned to stay out of Austin Ranch, and

believed that Loris had violated the law when he saw Loris‘s vehicle being driven

there.3 To the extent that Officer Plumb‘s decision to stop Loris was based on

information derived from the complainant‘s call to authorities, the information was

sufficiently reliable to justify the stop—the complainant was not anonymous, she

was in a position to be held accountable for her actions, she had witnessed

Loris‘s purported criminal trespass firsthand, and she was not a paid informant.

At the time of the stop on August 24, Loris was also identified by the property

manager, Mann, as the person who had previously, on August 15, been given a
      3
       On August 15, 2010, Officer Plumb met with Loris and with the property
manager, Kenneth Mann. At the request of Mann, Officer Plumb issued a
criminal trespass warning to Loris. Upon being dispatched to Austin Ranch,
Officer Plumb was told by the dispatch officer that a call was received from a
female indicating that Loris was at her front door at Austin Ranch. As he was
approaching the property of Austin Ranch on a public road, Officer Plumb
observed Loris driving away from the property, recognized him, and stopped him
300 feet later. The trial court‘s factual findings provide:
             The court finds that the officer on the day in question, on
      August 24th, 2010, in response to the dispatch call that placed him
      at the scene, which he saw a purported - - the defendant, the person
      who was identified in the dispatch as the person who may have
      been criminally trespassed, that officer had a valid reason to
      temporarily detain Mr. Loris for that purpose; that in response to the
      detention, the conversations that he had with Mr. Loris, he was
      conducting an investigation; therefore the conversations and the
      statements that were made by Mr. Loris at the time the court finds
      are the result of an investigative detention and not a custodial
      interrogation. Therefore we‘ll allow those statements in.
These record items support Officer Plumb‘s reasonable detention of Loris and
subsequent arrest on August 15, 2010.

                                        7
criminal trespass warning because of a disturbance at Brooke Dobbs‘s apartment

on August 15. See Turley, 242 S.W.3d at 181. Based on the totality of the

circumstances, we hold that Officer Plumb had reasonable suspicion to stop

Loris to investigate whether or not he had committed criminal trespass.4 The trial

court therefore did not err by admitting the statements that Loris made to Officer

Plumb during the stop. We overrule Loris‘s first point.

                                    IV. THE RULE

      In his second point, Loris argues that the trial court erred by denying his

motion to strike Officer Koiner‘s testimony for violating rule of evidence 614.

Rule of evidence 614, otherwise referred to as ―the Rule,‖ provides for the

exclusion of witnesses from the courtroom during trial. Tex. R. Evid. 614. The

purpose of rule 614 is to prevent the testimony of one witness from influencing

the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim.

App. 2005). Once rule 614 is invoked, witnesses are instructed by the trial court

that they cannot converse with one another or with any other person about the

case, except by permission from the court, and the trial court must exclude

witnesses from the courtroom during the testimony of other witnesses. Tex. R.

Evid. 614; Tex. Code Crim. Proc. Ann. art. 36.06 (West 2007). If a witness

violates rule 614, the trial court still has the discretion to allow testimony from the

      4
       To the extent that Loris argues he should have received Miranda warnings
after being detained, the law is settled that Miranda warnings arise when a
person has been subjected to a custodial interrogation and that a person held for
an investigative detention, as Loris was in this case, is not in custody. See
Campbell v. State, 325 S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no pet.).

                                          8
witness. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996), cert. denied,

522 U.S. 827 (1997). In reviewing the trial court‘s decision to allow testimony, we

determine whether the appellant was harmed or prejudiced by the witness‘s

violation.   Id.   Harm is established by showing (1) that the witness actually

conferred with or heard testimony of other witnesses and (2) that the witness‘s

testimony contradicted the testimony of a witness from the opposing side or

corroborated testimony of a witness he had conferred with or heard. Id.

       Here, defense counsel questioned Officer Koiner on the morning of

October 14, 2011, as to whether he had reviewed any documents prior to

testifying, and Officer Koiner explained that he had reviewed his report regarding

the events of September 29, 2010. After defense counsel took a moment to look

over the report and confirmed with Officer Koiner that it ―includes information

from other officers,‖ he moved to strike Officer Koiner‘s testimony for violating

rule 614.    At the brief hearing that followed, it was established that rule of

evidence 614 was invoked the previous day—the morning of October 13, 2011;

that Officer Koiner had obtained and reviewed his report that same morning at

approximately 8:00 a.m.; that Officer Koiner was sworn as a witness during the

afternoon of October 13, 2011; and that the report contains the handwritten word

―Koiner‖ on the first page. We have reviewed the exhibit, and it contains reports

from Officers Bloodworth and Hale.

       Although the record demonstrates that Officer Koiner reviewed the report

the same morning that the trial court invoked rule 614, we are unable to


                                        9
determine whether Officer Koiner reviewed the report after rule 614 had been

invoked. See Tex. Code Crim. Proc. Ann. art. 36.06 (stating that witnesses may

not review reports ―while under the rule‖); Guy v. State, No. 13-98-00004-CR,

1999 WL 33757454, at *2 (Tex. App.—Corpus Christi Aug. 31, 1999, no pet.)

(not designated for publication) (―‗The rule‘ had not been invoked, so ‗the rule‘

could not have been violated.‖). The trial court expressed a similar uncertainty at

the hearing on Loris‘s motion to strike Officer Koiner‘s testimony. Moreover, to

the extent that Officer Koiner may have violated rule 614, the trial court retained

the discretion to not strike Officer Koiner‘s testimony, but Loris provides no

argument or analysis regarding whether he suffered any injury or prejudice

resulting from the trial court‘s decision to deny Loris‘s motion to strike, nor does

our review of the record reflect any prejudice. See Tex. R. App. P. 38.1(i). We

overrule Loris‘s second point.

                       V. EXCLUSION OF EVIDENCE OF BIAS

      In his third point, Loris argues that the trial court abused its discretion by

prohibiting him from questioning Officer Koiner about the discount that he

receives on his rent in exchange for serving as a courtesy officer for his

apartment complex.     According to Loris, the evidence was relevant to show

whether Officer Koiner ―could be biased against‖ Loris or whether Officer Koiner‘s

actions during his confrontation with Loris were reasonable.

      We review a trial court‘s decision to exclude evidence for an abuse of

discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A


                                        10
trial court does not abuse its discretion as long as the decision to exclude the

evidence is within the zone of reasonable disagreement. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh‘g).

      The Confrontation Clause guarantees a defendant the right to cross-

examine witnesses. See U.S. Const. amend. VI. ―A defendant is entitled to

pursue all avenues of cross-examination reasonably calculated to expose a

motive, bias or interest for the witness to testify.‖ Carroll v. State, 916 S.W.2d

494, 497 (Tex. Crim. App. 1996). ―The proponent of evidence to show bias must

show that the evidence is relevant. The proponent does this by demonstrating

that a nexus, or logical connection, exists between the witness‘s testimony and

the witness‘s potential motive to testify in favor of the other party.‖ Woods v.

State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 1050

(2005). However, the trial court has considerable discretion in determining how

and when bias may be proved; it may limit cross-examination to avoid

harassment, prejudice, confusion of the issues, endangering the witness, and the

injection of cumulative or collateral evidence. Sansom v. State, 292 S.W.3d 112,

118–19 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d).          Limiting cross-

examination does not violate the defendant‘s right to confront a witness so long

as (1) the possible bias and motive of the State‘s witness is clear to the trier of

fact; and (2) the accused has otherwise been afforded an opportunity for a

thorough and effective cross-examination. Id. at 119.




                                        11
      Here,   Officer   Koiner   testified    twice—on   both   direct   and   cross-

examination—that he receives a discount on his rent in exchange for working as

a courtesy officer. The only question that the trial court prohibited Loris from

asking Officer Koiner concerned the exact amount of the discount that he

receives. But the trial court acted within its discretion in limiting the questioning

because the jury could have concluded that Officer Koiner was somehow biased

in favor of the State without knowing the specific amount of the discount that he

receives on his monthly rent.      The jury heard testimony that Officer Koiner

(a) works as a courtesy officer and (b) receives a discount on his rent. This was

all the evidence that the jury needed to conclude that Officer Koiner possessed

some type of bias for the State. Loris has not demonstrated the required nexus

between the excluded testimony and Officer Koiner‘s purported bias; therefore,

the specific amount of the discount was irrelevant.         Further, Loris had the

opportunity to thoroughly and effectively cross-examine Officer Koiner, which he

surely did. Accordingly, we overrule Loris‘s third point.

                          VI. JURY INSTRUCTION ERRORS

      In his fourth point, Loris argues that the trial court erred by refusing to

submit jury instructions under article 38.23 for both criminal trespass offenses

and an instruction about the defense of necessity for the escape from custody

offense.

      In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,


                                         12
731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26

(Tex. Crim. App. 2009).

      A.    Article 38.23(a)

      Code of criminal procedure article 38.23(a) provides as follows:

      No evidence obtained by an officer or other person in violation of
      any provisions of the Constitution or laws of the State of Texas, or of
      the Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.

      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005).             There are three

requirements to trigger an article 38.23(a) instruction: (1) the evidence heard by

the jury must raise an issue of fact, (2) the evidence of fact must be affirmatively

contested, and (3) the contested factual issue must be material to the lawfulness

of the challenged conduct in obtaining the statement claimed to be involuntary.

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008). ―Th[e] factual

dispute can be raised only by affirmative evidence, not by mere cross-

examination questions or argument.‖ Id.

      Regarding the August 24, 2010 criminal trespass, there was no disputed

issue of any fact relevant to the stop.      The only dispute concerned whether

Officer Plumb possessed reasonable suspicion to detain Loris. The same can be

said for the September 29, 2010 criminal trespass. There was no fact issue


                                        13
related to Loris‘s initial interaction with the police on Austin Ranch property. As

the State points out, Loris merely perceived several events that occurred that

night differently than the other witnesses. We hold that the trial court did not err

by denying Loris‘s request for an article 38.23 instruction, and we overrule this

part of Loris‘s fourth point.

      B.     Necessity

      A defendant is entitled to an affirmative instruction on every defensive

issue raised by the evidence regardless of the strength, weakness, or credibility

of the evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).

The defense of necessity is available to justify criminal conduct if (1) the

defendant reasonably believes that his conduct is immediately necessary to

avoid imminent harm; (2) the desirability and urgency of avoiding the harm

clearly outweigh the harm sought to be prevented by the law proscribing the

conduct; and (3) no legislative purpose exists to exclude the defense. Tex. Penal

Code Ann. § 9.22 (West 2011). A ―reasonable belief‖ is a belief that an ordinary

and prudent person would hold in the same circumstances as the defendant.

Tex. Penal Code Ann. § 1.07(a)(42) (West Supp. 2012). For the evidence to

support submission of a necessity instruction, the defendant must admit to

committing the offense. Wood v. State, 271 S.W.3d 329, 334 (Tex. App.—San

Antonio 2008, pet. ref‘d).

      Here, Loris testified that he thought he was about to experience a seizure

while he was in the back of the police cruiser being transported to jail, that he


                                        14
kicked out the window and stuck his head out to try to get help, and that Officer

Bloodworth ―slam[med] on the brakes, at which point [Loris] went right out the

window.‖    Thus, Loris never admitted to committing the offense of escape.

Instead, he blamed physics for his ―eject[ion]‖ from the cruiser.

      Alternatively, Loris argues that he ―feared that he was about to have a

seizure‖ and that he ―felt like he had to break the window and get out of the

backseat of the car in order to prevent the immediate harm of having a seizure in

the backseat of the squad car.‖ Notwithstanding that the factual basis of this

argument appears to conflict with Loris‘s testimony at trial (that he inadvertently,

as opposed to intentionally, exited the vehicle), Loris could not have entertained

a reasonable belief that jumping out of a moving vehicle was immediately

necessary to avoid experiencing a seizure. We hold that the trial court did not err

by denying Loris‘s requested necessity instruction, and we overrule the

remainder of his fourth point.

                                 VII. CONCLUSION

      Having overruled Loris‘s four points, we affirm the trial court‘s judgment.



                                                    BILL MEIER
                                                    JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: August 1, 2013


                                         15
