                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-146-CR


TODD WAYNE SWAFFAR                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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

                                 OPINION

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

      A jury found Appellant Todd Wayne Swaffar guilty of driving while

intoxicated (DWI), and the trial court sentenced him to fifteen days’

confinement and a $2,000 fine. On appeal, Appellant contends in a single point

that the trial court erred by denying his motion to suppress. Because we hold

that no reasonable suspicion supported the stop and that the State did not

prove that the stop was justified as a community caretaking function, we
reverse the trial court’s judgment and remand this case to the trial court for

further proceedings consistent with this opinion.

                            I. B ACKGROUND F ACTS

      According to his testimony, during the late night hours of May 20, 2006,

Officer Jose Flores of the Lewisville Police Department “[r]eceived a dispatch

on a possible disturbance that occurred at a location off of Pier 121 Marina.

We were advised that a caller called in saying there was a male pushing around

a female in the parking lot.” The caller refused to give her name and insisted

on remaining anonymous.

      Officer Flores testified, “[W ]e were told that [the anonymous call] was

related to a maroon vehicle that was occupied by a male and a female, that

they had just left the area after the dispatch came out.” Officer Flores was

familiar with the area in which the two people were purportedly located and

knew that, because of road construction, there was only one way into and out

of the parking lot. Therefore, Officer Flores, who was already located nearby,

drove down the road toward the parking lot, knowing that if a vehicle was

leaving from the area he would quickly pass it. Within one minute of receiving

the dispatch call, Officer Flores passed a maroon Honda four-door car with a

male driver and a female passenger exiting the area. He turned around and

followed the car.


                                      2
      When he reached the vehicle, Officer Flores began to videotape it because

he “was advised also that the driver was possibly intoxicated.” Officer Flores

could not see inside the car with great detail because it was too dark. He could

tell that the man and woman were “occupied,” but he saw no fighting. While

he was following the car, Officer Flores saw the car swerve within its own lane

of traffic, but he did not notice the driver commit any traffic infractions,

although he testified that when he later reviewed the in-car video, he noticed

that Appellant had run a stop sign.

      Officer Flores continued to follow the car, and when Appellant reached

Standridge Drive to travel toward Highway 121, the officer activated his roof

lights because he wanted to stop the car before it got to Highway 121. When

the car stopped at a red light, neither the driver nor the passenger tried to get

out of the car.

      Officer Flores followed the car another 1,000 feet after he activated his

lights. When the car reached the light at Highway 121, Officer Flores hit his

siren a few times, and Appellant eventually stopped after he had traveled

another 1,000 feet.

      Despite the fact that Officer Flores made no effort to stop the car to

investigate the woman’s safety until after he had turned on his camera and




                                       3
followed the car from the original location off Pier 121 Marina to Highway 121

because he had been told the driver might be intoxicated, the officer testified,

            Q.     Now, Officer, when you approached the vehicle, was
      it your intent to perform a DWI investigation?

            A.    No.   My intent for the stop was in relation to the
      disturbance.

            Q.    Okay. And again remind the Court what type of
      disturbance was it?

            A.   It was possibly a domestic disturbance between a male
      and a female.

            Q.    Officer, were you concerned for the people’s welfare
      inside the vehicle?

            A.    Yes, sir.

      When the car finally did pull over, the officer approached the vehicle’s

driver and immediately detected a moderate odor of alcohol on his breath. The

car’s driver was Appellant.

      At trial, Appellant moved to suppress evidence of the stop, arguing that

the anonymous tip along with the officer’s failure to independently observe

Appellant commit any traffic law violations provided an insufficient basis to

initiate the stop. The trial court denied Appellant’s motion.

      After the trial court’s ruling, a jury heard the evidence and convicted

Appellant of DWI, and the trial court sentenced him. Appellant now appeals the



                                       4
trial court’s denial of his motion to suppress. In his sole point, he contends that

the trial court erred by denying his motion to suppress when the arresting

officer detained him on the sole basis of an anonymous tip which was not

sufficiently corroborated.

                             II. S TANDARD OF R EVIEW

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

a bifurcated standard of review.1 In reviewing the trial court’s decision, we do

not engage in our own factual review.2 The trial judge is the sole trier of fact

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

testimony.3     Therefore, we give almost total deference to the trial court’s

rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility

and demeanor.4 But when application-of-law-to-fact questions do not turn on



      1
     … 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).
      2
       … Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
      3
      … Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other
grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
      4
          … Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101,

                                         5
the credibility and demeanor of the witnesses, we review the trial court’s

rulings on those questions de novo. 5

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling.6 When the record is silent on the reasons for the trial court’s

ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply 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 those findings. 7

We then review the trial court’s legal ruling de novo unless the implied fact

findings supported by the record are also dispositive of the legal ruling.8

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court



108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53
(Tex. Crim. App. 2002).
      5
       … Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
      6
      … Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
      7
      … Kelly, 204 S.W.3d at 819; see Amador, 221 S.W.3d at 673; Wiede,
214 S.W.3d at 25.
      8
          … Kelly, 204 S.W.3d at 819.

                                        6
gave the wrong reason for its ruling.9

     III. T HE S TOP IS N OT J USTIFIED ON THE B ASIS OF R EASONABLE S USPICION

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts.10 An officer conducts a lawful temporary detention

when he or she has reasonable suspicion to believe that an individual is

violating the law.11 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.12 This is an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an

objective basis for the stop exists.13       In determining whether reasonable

suspicion supports a stop, we look only at those facts known to the officer at


      9
       … State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
      10
      … Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
      11
           … Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
      12
           … Id. at 492–93.
      13
           … Id. at 492.

                                         7
the inception of the stop. 14

      In the case before us, an anonymous tip triggered the police investigation.

As our sister court in Austin has explained,

      An anonymous tip usually will justify the initiation of a police
      investigation. However, an anonymous tip or telephone call alone
      rarely will establish the requisite level of suspicion necessary to
      justify an investigative detention. Normally, there must be some
      further indicia of reliability—additional facts from which a police
      officer may reasonably conclude that the tip is reliable and a
      detention is justified. To justify a police officer’s conclusion that
      a crime has been or is being committed, the officer generally
      cannot rely alone on a police broadcast of an anonymous phone call
      to establish probable cause or reasonable suspicion.

             When an investigative detention is based solely on an
      anonymous tip, the court often has no way of evaluating the
      reliability of the information from the anonymous source. If an
      anonymous tip has a low degree of reliability, more information will
      be required to establish the requisite level of suspicion to justify an
      investigative detention. An anonymous tip may, however, be
      sufficient if it contains sufficient “indicia of reliability” or if some
      aspects of it are sufficiently corroborated.

             An officer’s prior knowledge, his experience, and his
      corroboration of the details of the tip may be considered in giving
      the anonymous tip the weight it deserves. Mere corroboration of
      details, however, that are easily obtainable at the time the
      information is provided will not support a finding of probable cause
      nor furnish the basis for reasonable suspicion.

            In Glenn v. State, the [Amarillo] court found that “the
      following are significant in determining whether reasonable
      suspicion exists for a temporary detention based upon information


      14
        … State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.—Austin 2007,
pet. ref’d).

                                         8
      from an unknown tipster: (1) accurately predicting future behavior
      of third parties; (2) corroboration of a detail linking the accused to
      the stated criminal activity; and (3) a particularized and objective
      reason to suspect the accused.” 15

      A tipster’s accurate description of a person’s looks and whereabouts may

help the police correctly identify the person as the one whom the tipster

intended to accuse, but it does nothing to show that the tipster had information

that the person was involved in criminal activity.16

      The caller in this case refused to give her name and insisted on remaining

anonymous, although Officer Flores suggested that the police somehow found

out her name. It is unclear from his testimony whether the police learned the

name of the actual caller or only the name of the person connected with the

telephone on which the call was made.

      The anonymous call was not made by someone who remained on the

scene or who remained there long enough to make sure that the officer

detained the correct vehicle. To Officer Flores’s knowledge, the caller did not

make herself readily available to be called to court, and he did not have her

telephone number, her address, or a description of her.



      15
        … Davis v. State, 989 S.W.2d 859, 863–864 (Tex. App.—Austin 1999,
pet. ref’d) (citations omitted).
      16
           … Dowler v. State, 44 S.W.3d 666, 670 (Tex. App.—Austin 2001, pet.
ref’d).

                                        9
      The caller did not provide a license plate number, a make of car, or a

description of the people involved except gender and number. Nothing in the

tip suggested a relationship between the man and woman that would satisfy

the requisites of a domestic violence assault.17 Indeed, Officer Flores described

the caller’s description of the behavior she viewed as only a “possible assault.”

On cross-examination, he testified,

      Q.     Sure. Okay. I guess what I’m getting at is, you didn’t have
      a specific report, hey, I just saw a man hit a woman in the face, I
      saw a man push a woman to the ground and kick her, something
      like that?

      A.       Correct.

      Q.    You had something to investigate, right? But you didn’t have
      a specific report of a crime?

      A.       True.

We therefore hold that the anonymous tip was insufficient to establish

reasonable suspicion for the stop.

      Further, Officer Flores did not observe any fighting.        When the car

stopped at a red light, neither Appellant nor the passenger tried to get out of

the car. Additionally, Officer Flores did not see Appellant commit any traffic

violations before the stop. The officer’s testimony that when he reviewed the

in-car videotape, he noticed that Appellant had run a stop sign is of no


      17
           … See T EX. P ENAL C ODE A NN. § 22.01 (Vernon 2007).

                                        10
significance because the officer admitted that he did not see Appellant run the

stop sign. We therefore cannot consider this evidence in determining whether

the officer had reasonable suspicion to stop Appellant.18 While the officer did

testify that he saw Appellant swerve within his own lane and that the amount

of time that Appellant used to stop in response to the officer’s signal and siren

was not normal, these observations do not rise to the level of reasonable

suspicion.

      Based on the totality of the circumstances, we hold that Officer Flores’s

independent observations coupled with the anonymous tip did not establish

reasonable suspicion for the stop.

                    IV. T HE S TOP IS N OT J USTIFIED ON THE B ASIS
                      OF THE C OMMUNITY C ARETAKING D OCTRINE


      “[T]he Fourth Amendment does not bar police officers from making

warrantless entries and searches when they reasonably believe that a person

within is in need of immediate aid.” 19 Therefore, “even without reasonable

suspicion or probable cause that an offense has been committed, a police

officer may reasonably seize an individual through the exercise of his




      18
           … See Griffey, 241 S.W.3d at 704.
      19
           … Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413
(1978).

                                         11
community caretaking function.” 20      Thus, under the community caretaking

doctrine, “[a]s part of an officer’s duty to ‘serve and protect,’ an officer 'may

stop and assist an individual whom a reasonable person, given the totality of

the circumstances, would believe is in need of help.’” 21 Determining whether

an officer has properly invoked his community caretaking function is a two-step

process.22 First, the reviewing court must determine whether the officer was

primarily motivated by a community caretaking purpose. 23 Second, the court

must determine whether the officer’s belief that his assistance was required

was reasonable. 24

      The first step recognizes that the community caretaking function is

“totally divorced from the detection, investigation, or acquisition of evidence

relating to a violation of a criminal statute.” 25 If the reviewing court determines

that the officer was primarily motivated by a non-community caretaking



      20
        … Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002); Wright
v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App. 1999).
      21
           … Corbin, 85 S.W.3d at 276 (quoting Wright, 7 S.W.3d at 151–52).
      22
           … See id. at 277.
      23
           … Id.
      24
           … Id.
      25
           … Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528
(1973).

                                        12
purpose, then the community caretaking doctrine is inapplicable to justify his

intrusion. 26

       W hen he reached the vehicle, Officer Flores began to record it as he

followed it, not because he was concerned for the safety of the woman, but

because he was advised by the anonymous caller that the driver was possibly

intoxicated.      Although Officer Flores could have stopped the vehicle

immediately to check on the welfare of the woman, he chose not to do so.

Instead, he followed the vehicle with his camera recording Appellant’s driving.

       Taking as true everything that Officer Flores said, he was not concerned

that Appellant or his passenger was in need of assistance. He was concerned

that an assault had occurred, and he stopped Appellant to investigate an assault

called in by an anonymous caller. Officer Flores testified on direct examination,

             Q.     Now, Officer, when you approached that vehicle, was
       it your intent to perform a DWI investigation?

             A.    No.    My intent for the stop was in relation to the
       disturbance.

             Q.    Okay. And again remind the court what type of
       disturbance was it?

             A.   It was possibly a domestic disturbance between a male
       and a female.



       26
            … Corbin, 85 S.W.3d at 277.


                                          13
            Q.    Officer, were you concerned for the people’s welfare
      inside the vehicle?

            A.     Yes, sir.

On cross-examination, Officer Flores testified,

            Q.    Officer, your reason for stopping that car was to
      investigate a possible assault; is that correct?

            A.     Yes, sir.

            Q.     And you had no other reason to stop that car, correct?

            A.     Correct.

            ....

            Q.    Okay. And in this case you did not stop him for
      running a stop sign, you stopped him to investigate an assault?

            A.     Correct, sir.

            Q.   And the assault was — there was a call in by what you
      said was an anonymous caller; is that correct?

            A.     Yes.

             Q.  And what was relayed to you was that the anonymous
      caller had said there that [sic] was a man pushing around a
      woman—

            A.     Yes.

            ....

            Q.     But that’s not a specific description of an assault, is it?

            A.     It’s not specifically stating what it is.


                                        14
            Q.    I mean a man could be pushing around a woman for
      reasons that are not a crime? I mean it might not add up to a
      crime, right?

               ....

               A.     Yes.

      Officer Flores testified that he stopped Appellant to investigate an assault

and, in response to the prosecutor’s leading question regarding the officer’s

“primary concern when [he] approached the vehicle,” responded that it was

“[t]o make sure that the people in the vehicle were not involved in an

altercation.” By the time he finally pulled the maroon car over, he knew that

any assault was over. He had seen inside the car, determined that a man and

a woman were inside, and knew that, although they were “occupied,” they

were not fighting.      After the officer stopped the car, he investigated the

purported assault and learned that no assault had occurred.

      The community caretaking function must be “totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of

a criminal statute.” 2 7     Because the evidence shows that Officer Flores was

investigating a crime and that the criminal investigation was in fact the primary

purpose for the stop, the community caretaking doctrine cannot justify the

stop. We sustain Appellant’s sole point.


      27
           … Cady, 413 U.S. at 441, 93 S. Ct. at 2528.

                                          15
                                V. C ONCLUSION

      Because we hold that the stop was not justified by reasonable suspicion

or the community caretaking doctrine, we reverse the trial court’s judgment and

remand this case to the trial court for proceedings consistent with this opinion.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL M: DAUPHINOT, HOLMAN, and WALKER, JJ.

PUBLISH

DELIVERED: June 12, 2008




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