                                     In The

                              Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-18-00290-CR
                             __________________

                    KENNETH AARON MIMS, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 75th District Court
                       Liberty County, Texas
                      Trial Cause No. CR32830
__________________________________________________________________

                         MEMORANDUM OPINION

      Kenneth Aaron Mims appeals his conviction for possession of a controlled

substance in an amount less than one gram. See Tex. Health & Safety Code Ann. §

481.115(b) (West 2017); Tex. Penal Code Ann. § 12.425 (West 2019). In a single

issue before the Court, Mims argues that the trial court erred when it denied his

motion to suppress based on a warrantless search by a police officer whose

justification for stopping Mims was community caretaking. Mims contends the


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officer did not have a reasonable belief that Mims was in distress or have reasonable

suspicion or probable cause to stop Mims in his vehicle pursuant to the Fourth

Amendment. See U.S. CONST. amend. IV. For the reasons explained below, we

affirm the judgment of the trial court.

                           Motion to Suppress Hearing

       Liberty County Sheriff’s Deputy Martel was the only witness to testify during

the hearing on the motion to suppress. 1 The deputy testified that on January 30, 2016,

he received notification from a Liberty County 911 dispatcher about a possible

intoxicated driver on the roadway. According to the deputy, he did not personally

hear the 911 call, but the dispatcher relayed information about the call. Deputy

Martel explained that he initially passed Mims’s vehicle on the road because he was

en route to assist other law enforcement officers who pulled over another vehicle

matching the description. Once it was determined that other officers stopped the

wrong vehicle, the deputy then identified Mims’s car as matching the description of

the vehicle given by the 911 caller and initiated a stop. The 911 caller continued

following Mims’s vehicle, stopped, and remained at the scene to provide the officer

with a statement.



   1
     The State conceded at the hearing that the deputy performed a warrantless
search.
                                      2
       The deputy stated he did not observe Mims violate any traffic laws or exhibit

any signs of physical distress before he stopped Mims nor had he determined

probable cause. The deputy testified he believed Mims was intoxicated and a

possible danger to himself and others based on the information provided by the 911

caller.2 Deputy Martel testified that he pulled Mims over at 9:30 p.m. and described

that particular stretch of highway as “well-traveled” at that time of night. He also

testified that Mims was driving only 49 miles per hour when the posted speed limit

was 65, presenting a “potential danger or hazard” for other drivers. 3 After detaining

Mims, the deputy discovered PCP in Mims’s car, and he arrested Mims for the

possession. 4

       The trial court denied Mims’s motion to suppress stating that based on the

“community care-taking exception” and “exigent circumstance,” the officer’s initial



   2
      At the State’s request, the trial court admitted a recording of the 911 call into
evidence at the hearing. On the recording, the caller identified himself, and the
dispatcher can be heard telling law enforcement that the driver was stopped on the
side of the road, was belligerent, possibly intoxicated, and that his car “reeked” of
PCP and alcohol.
    3
      The deputy admitted during cross examination that Mims was approaching the
City of Dayton, and the speed limit significantly decreases when a vehicle enters the
city.
    4
      Our recitation of the facts only addresses the events leading to Mims’s initial
detention. Mims was not challenging the “voluntariness of the consent” to search his
vehicle. Accordingly, in the motion to suppress hearing, the trial court only
considered whether the deputy’s initial detention of Mims was illegal.
                                            3
detention of Mims was “reasonable under the totality of the circumstances.” After

the trial court declined to suppress the evidence discovered following the search, the

jury found Mims guilty of possession of a controlled substance in an amount less

than one gram. Mims pleaded true to two enhancements, and the trial court sentenced

him to fourteen years of confinement in the Texas Department of Criminal Justice.

Mims timely appealed.

                                Standard of Review

      A motion to suppress evidence is nothing more than a specialized objection.

Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981); Mayfield v. State,

800 S.W.2d 932, 935 (Tex. App.—San Antonio 1990, no pet.). At trial, a trial court

may reconsider, and even change, its order on an earlier suppression hearing. See

Montalvo v. State, 846 S.W.2d 133, 137–38 (Tex. App.—Austin 1993, no pet.).

Thus, upon review, an intermediate appellate court is not confined to the record of

the suppression hearing but may consider the entirety of the record to determine the

propriety of the trial court’s order. See Wallace v. State, 932 S.W.2d 519, 521 (Tex.

App.—Tyler 1995, pet. ref’d).

      We use a bifurcated standard of review when examining a trial court’s ruling

on a motion to suppress. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)). Under

                                          4
that standard, we “must give ‘almost total deference to a trial court’s determination

of the historical facts that the record supports especially when the trial court’s fact

findings are based on an evaluation of credibility and demeanor.’” Id. (quoting

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Likewise, if the trial

court resolves a motion to suppress based on a resolution of mixed questions of law

and fact, its evaluation of the credibility and demeanor of the witnesses is given

almost total deference. Id. (citing Montanez v. State, 195 S.W.3d 101, 107 (Tex.

Crim. App. 2006)). In contrast, if the trial court’s findings do not depend on the trial

court’s evaluations of the credibility and demeanor of the witnesses or turned on

resolving a pure question of law, we review its ruling using a de novo standard. Id.

(citing Montanez, 195 S.W.3d at 107); Guzman, 955 S.W.2d at 89 (citation omitted).

      The record before us reveals that Mims did not ask the trial court to prepare

written findings of fact and conclusions of law explaining its ruling on his motion to

suppress. Because there are no written findings in the record, we “impl[y] the

necessary fact findings that would support the trial court’s ruling if the evidence

(viewed in the light most favorable to the trial court’s ruling) supports these implied

fact findings.” State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006);

accord State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (citing Carmouche

v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)). The decision of the trial court

                                           5
will be sustained if it is correct under any theory of law applicable to the facts of the

case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005); Ross, 32 S.W.3d

at 856.

                                       Analysis

      In his sole issue, Mims argues that “the controlled substance introduced into

evidence at his trial was seized as the result of an illegal warrantless detention in

violation of the Fourth Amendment to the United States Constitution[.]” Mims

contends that the deputy did not have reasonable suspicion or probable cause to

detain him based on the information provided by the 911 caller and the deputy’s

observations of Mims’s driving. In addition, he argues the deputy could not

reasonably conclude Mims was in distress or creating exigent circumstances as a

danger to others on the highway.

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17, 24

(Tex. Crim. App. 2007) (citing O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim.

App. 2000)). To suppress evidence because of an alleged Fourth Amendment

violation, the defendant bears the initial burden of producing some evidence that

rebuts the presumption of proper police conduct. Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009) (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.

                                           6
App. 1986)). “A defendant satisfies this burden by establishing that a search or

seizure occurred without a warrant.” Ford, 158 S.W.3d at 492 (citation omitted).

Once the defendant has made this showing, the burden then shifts to the State to

prove that the search or seizure was conducted pursuant to a warrant or was

reasonable. Id. The State stipulated this case involved a warrantless stop and arrest.

Therefore, the State had the burden to establish the reasonableness of the stop. See

id.

      “[W]hether a search and seizure is unreasonable within the meaning of the

Fourth Amendment depends upon the facts and circumstances of each case . . . [.]”

South Dakota v. Opperman, 428 U.S. 364, 375 (1976) (citations omitted). “Under

the Fourth Amendment, a temporary detention is justified when the detaining officer

has specific articulable facts which, taken together with rational inferences from

those facts, lead the officer to conclude that the person detained is, has been, or soon

will be engaged in criminal activity.” Brother v. State, 166 S.W.3d 255, 257 (Tex.

Crim. App. (2005) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “These facts must

amount to more than a mere hunch or suspicion.” Id. (citing Davis v. State, 947

S.W.2d 240, 244 (Tex. Crim. App. 1997)).

             Reasonable suspicion is a less demanding standard than probable cause
      not only in the sense that reasonable suspicion can be established with
      information that is different in quantity or content than that required to
      establish probable cause, but also in the sense that reasonable suspicion can
                                          7
      arise from information that is less reliable than that required to show probable
      cause.

Ala. v. White, 496 U.S. 325, 330 (1990) (citations omitted). Reasonable suspicion

can arise not only from an officer’s personal observations, but from information

provided by another person. See id. “We have firmly rejected the argument ‘that

reasonable cause for a[n investigative stop] can only be based on the officer’s

personal observation, rather than on information supplied by another person.’”

Navarette v. California, 572 U.S. 393, 397 (2014) (quoting Adams v. Williams, 407

U.S. 143 (1972)). While tips from anonymous sources lack “sufficient indicia of

reliability,” information provided by an identified caller who could be held

“accountable for the intervention” improves the reliability of the information

provided to the officer. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App.

2011). “In determining whether an officer has reasonable suspicion to detain, we

look at the totality of the circumstances through an objective lens, disregarding the

officer’s subjective intent.” Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim.

App. 2014) (citation omitted). This is an objective standard that disregards the

officer’s subjective intent and analyzes whether there was an objectively verifiable

basis for detention. Derichsweiler v. State, 348 S.W.3d 906, 914–15 (Tex. Crim.

App. 2011). “Although some circumstances may seem innocent in isolation, they

will support an investigatory detention if their combination leads to a reasonable
                                         8
conclusion that criminal activity is afoot.” Matthews, 431 S.W.3d at 603 (citation

omitted).

      The Deputy had reasonable suspicion to stop and investigate Mims based on

the information the 911 caller provided. The deputy testified that he did not witness

Mims in any distress when he followed his vehicle, but he believed that Mims was

intoxicated based on the information provided by the 911 caller. The caller gave a

detailed description of the car, its location, the license plate, and Mims’s mental and

physical condition. The 911 caller reported to the dispatcher that he pulled over to

assist a motorist and when he asked the driver if he was okay, the driver could not

talk. The 911 caller testified that when he first approached the car, the driver’s head

was slumped over between the steering wheel and the window, his eyes were closed,

and he was non-responsive. Once the 911 caller roused the driver, he attempted to

attack the caller with a car jack. The 911 caller reported that the driver and car

emanated a strong odor of PCP. While following the car, the 911 caller stated that

the driver was swerving, and he believed the driver might cause an accident.

      While Mims’s distress was not apparent to the deputy, examining the deputy’s

detention and the totality of the circumstances demonstrates that the deputy acted

reasonably. The deputy had reports of an intoxicated driver from an identified 911

caller who described the driver as belligerent and said he “reeked” of PCP and

                                          9
alcohol. The driver stayed with the reported vehicle, turned on his flashers to alert

the deputy to his location, and gave a statement following Mims’s arrest. A police

officer acts reasonably when he relies on information provided by a concerned

citizen. See State v. Ford, 537 S.W.3d 19, 26 (Tex. Crim. App. 2017) (in considering

probable cause, the court held that an officer can rely on a concerned citizen’s report,

because citizen informants who identify themselves “are considered inherently

reliable”); Derichsweiler, 348 S.W.3d at 915–16) (analyzing reasonable suspicion,

the court held that even if a police officer is not “personally aware” of the

information provided by the 911 caller, and the dispatcher did not provide all the

information to the officer, a court examines the “totality of that reliable information”

such as facts and reasonable inferences); Brother, 166 S.W.3d at 258–59 n.5 (noting

that an officer does not have to personally witness information to corroborate an

eyewitness account to be reliable and that an officer’s reliance on information

provided by a citizen-eyewitness where the citizen gave a detailed description of the

driver, car, and the erratic driving, followed the suspect with emergency lights on,

kept in contact with the dispatcher while following the suspected driver, and

remained at the scene after the stop, did not run afoul of the Fourth Amendment). 5


   5
    The State argued that Derichsweiler v. State applied in establishing that the
deputy was justified in stopping Mims. See 348 S.W.3d 906, 915–16 (Tex. Crim.
App. 2011). While the trial court stated that it did not rely on Derichsweiler when it
                                          10
      Even though the trial court denied the motion to suppress the evidence

discovered from a search after a warrantless investigative stop on the basis of

community caretaking, we hold the record supports that the arresting officer had

reasonable suspicion to stop Mims. This is based on the articulated reasonable facts

provided by an identified 911 caller regarding the condition of the suspected driver.

This information allowed the officer to form a reasonable suspicion that Mims was

operating a motor vehicle upon the roadways while intoxicated, which justified the

warrantless investigative stop. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim.



denied Mims’s motion to suppress, Mims attempts to distinguish Derichsweiler
because that officer relied on the 911 caller’s description of the defendant’s behavior
as well as his own observations of the defendant’s behavior and the officer knew he
was stopping the correct vehicle. (emphasis added.) In Derichsweiler, the 911 caller
provided a detailed description of the suspect, stating that the defendant was staring
at them and causing him to fear for his safety, and the caller stayed on the phone
with the 911 dispatcher until police arrived. Id. at 909. The officer stated that the
only information he had for reasonable suspicion came from the dispatcher about a
suspicious vehicle. Id. at 910. The Court of Criminal Appeals found the detailed
information provided by the 911 caller enough to justify reasonable suspicion for the
initial stop based on the totality of the circumstances, holding “[i]t matters not that
all of this conduct could be construed as innocent of itself; for purposes of a
reasonable-suspicion analysis, it is enough that the totality of the circumstances,
viewed objectively and in the aggregate, suggests the realistic possibility of a
criminal motive, however amorphous, that was about to be acted upon.” Id. at 917.
According to the Court, reasonable suspicion under the Fourth Amendment can be
formed “on the basis of a lesser quantum or quality of information[,]” because a
warrantless investigative stop is a “significantly lesser intrusion” on the privacy of a
person than a custodial arrest. Id. at 916.

                                          11
App. 2002) (“Even when the trial judge gives the wrong reason for his decision, if

the decision is correct on any theory of law applicable to the case it will be

sustained.”) (citations omitted); see also Gray, 158 S.W.3d at 467; Ross, 32 S.W.3d

at 856. We overrule Mims’s sole issue on appeal.

                                    Conclusion

      After determining that the trial court properly denied Mims’s motion to

suppress, we affirm the judgment of the trial court.

      AFFIRMED.

                                                       _________________________
                                                            CHARLES KREGER
                                                                 Justice

Submitted on August 12, 2019
Opinion Delivered September 25, 2019
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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