Opinion issued September 5, 2013.




                                    In The

                            Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                            NO. 01-12-00553-CR
                         ———————————
                 DAVID LEROY TAFLINGER, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



         On Appeal from the County Criminal Court at Law No. 14
                          Harris County, Texas
                      Trial Court Case No. 1791890


                               OPINION

     Appellant David Leroy Taflinger moved for en banc reconsideration of this

panel’s opinion issued on May 9, 2013. We sua sponte withdraw our opinion and

judgment of May 9, 2013, and issue this opinion and judgment in their place.

Taflinger’s motion for en banc reconsideration is rendered moot by our
withdrawing and reissuing our opinion and judgment. See Poland v. Ott, 278

S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

      Taflinger was charged with misdemeanor driving while intoxicated (DWI).

Following the trial court’s denial of his motion to suppress, Taflinger pleaded nolo

contendere and received a suspended sentence of 180 days in county jail, one year

community supervision, and a $400 fine. On appeal, Taflinger argues that the trial

court erred by denying his motion to suppress because: (1) the citizen-informant’s

tip was too conclusory to give rise to reasonable suspicion; and (2) the arresting

officer did not have probable cause to stop Taflinger because he did not commit a

traffic violation. We affirm.

                                   Background

      At approximately 1:00 a.m. on November 8, 2011, Officer Kenneth D.

Troost received a call on his cell phone as he was leaving the parking lot of a

Chevron gas station in his patrol car. The call was from Reva Woffard, the gas

station attendant on duty at the Chevron. Troost was familiar with this gas station

and Woffard because he routinely fueled his patrol car there. Woffard told Troost

that a man had just come into the gas station, that he was intoxicated, and that he

was getting into a red truck. Troost hung up and immediately pulled around to the

back entrance of the gas station. There he saw that the only truck in the parking lot

was a red truck, which was headed toward the exit of the gas station. Troost pulled

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in behind the truck and observed its driver, Taflinger, exit the Chevron parking lot,

cross two lanes of northbound traffic, and turn left without signaling to head

southbound on the roadway. Troost stopped Taflinger’s vehicle and, following a

brief investigation, arrested Taflinger for DWI.

      Taflinger was charged with misdemeanor DWI.            He filed a motion to

suppress alleging that Troost lacked reasonable suspicion to stop him. At a hearing

on Taflinger’s motion, Troost testified that he stopped Taflinger after he received a

call from Woffard and observed Taflinger commit a traffic violation—failing to

signal his left turn out of the gas station onto the public roadway. Taflinger argued

that Woffard’s conclusion that he was intoxicated was unsupported by specific

articulable facts necessary to create reasonable suspicion. He also argued that

there was no traffic violation because the Traffic Code does not require a person to

signal a turn from a private drive onto a public roadway.

      The trial court found that Troost had reasonable suspicion to stop Taflinger

based on Woffard’s report that Taflinger was intoxicated and the existence of

exigent circumstances. The trial court also found that Troost had probable cause to

stop Taflinger, based on his failure to signal his turn.

                                      Discussion

      In his two points of error, Taflinger argues that the trial court erred by

denying his motion to suppress because: (1) Woffard’s tip was too conclusory to

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give rise to reasonable suspicion; and (2) the arresting officer did not have

probable cause to stop Taflinger because he did not commit a traffic violation.

A.    Standard of Review

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

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007).    Accordingly, we give almost total deference to the trial court’s

determination of historical facts if supported by the record. Ford, 158 S.W.3d at

493. But we review de novo the trial court’s application of the law to those facts.

Id. “[T]he prevailing party is entitled to ‘the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from that evidence.’”

State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (quoting State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). A trial court’s

ruling will be sustained if it is “reasonably supported by the record and correct on

any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857

(Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.

App. 2002)).




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B.    Applicable Law

      A police officer is permitted to stop and temporarily detain a person in order

to conduct an investigation if the officer, based on his experience, has a reasonable

suspicion that an individual is violating the law. Terry v. Ohio, 392 U.S. 1, 30, 88

S. Ct. 1868, 1884–85 (1968); Ford, 158 S.W.3d at 492 (citing Balentine v. State,

71 S.W.3d 763, 768 (Tex. Crim. App. 2002)). An officer is justified in initiating a

traffic stop “if the officer, based upon specific and articulable facts, reasonably

surmises that the detained person may be associated with a crime.” Davis v. State,

829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (citing Terry, 392 U.S. at 21, 88 S.

Ct. at 1880). The officer “must be able to articulate something more than an

‘inchoate and unparticularized suspicion or hunch.’” Foster v. State, 326 S.W.3d

609, 613 (Tex. Crim. App. 2010) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883).

Reasonable suspicion is determined by considering whether the officer had “some

minimal level of objective justification for making the stop.”       Id.    Because

reasonable suspicion is an objective standard, we disregard any subjective intent of

the officer and we consider the totality of the circumstances. Ford, 158 S.W.3d at

492–93.

      The officer need not personally observe the factual basis giving rise to

reasonable suspicion for a traffic stop; rather, under certain circumstances, a stop

may be justified if the facts underlying the traffic stop are observed by a civilian-

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informant. See Brother v. State, 166 S.W.3d 255, 259 n.5 (Tex. Crim. App. 2005)

(citing Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1923 (1972)). “A

citizen’s tip may justify the initiation of a stop if the tip contains ‘sufficient indicia

of reliability’” and the officer corroborates those facts supplied by the citizen-

informant. Nacu v. State, 373 S.W.3d 691, 694 (Tex. App.—San Antonio 2012, no

pet.) (quoting Arzipe v. State, 308 S.W.3d 89, 92 (Tex. App.—San Antonio 2010,

no pet.)).

       A tip is entitled to greater weight when the informant gives a detailed

description of the wrongdoing, along with a statement that the informant observed

the event firsthand. Pipkin v. State, 114 S.W.3d 649, 655 (Tex. App.—Fort Worth

2003, no pet.). “Furthermore, a person who is not connected with the police or

who is not a paid informant is considered inherently trustworthy when he advises

the police that he suspects criminal activity has occurred or is occurring.” Id.;

State v. Stolte, 991 S.W.2d 336, 341 (Tex. App.—Fort Worth 1999, no pet.).

“[W]hen the informant provides self-identifying information that makes himself

accountable for the intervention, the degree of reliability significantly improves.”

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011) (citing Brother,

166 S.W.3d at 257).

       The most reliable form of a citizen tip is information given to the officer by

a “face-to-face informant who has no other contact with the police beyond

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witnessing a criminal act.” State v. Griffey, 241 S.W.3d 700, 704–05 (Tex. App.—

Austin 2007, pet. ref’d) (citing Cornejo v. State, 917 S.W.2d 480, 483 (Tex.

App.—Houston [14th Dist.] 1996, pet. ref’d)). Because of the inherent reliability

of such an informant, the information provided by that informant may be sufficient

to establish reasonable suspicion without additional corroboration. See id. at 705.

        “[C]orroboration refers to whether the police officer, in light of the

circumstances, confirms enough facts to reasonably conclude that the information

given to him is reliable and a temporary detention is thus justified.” Brother, 166

S.W.3d at 259 n.5. There is an inverse relationship between the reliability of the

informant and the amount of corroboration needed to justify the stop—the less

reliable the tip, the more corroborating information is needed.        Martinez, 348

S.W.3d at 923 (citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416

(1990)).

C.      Reasonable Suspicion

        Taflinger concedes that Woffard’s past relationship with the officer qualifies

her as a reasonably reliable source of information. But, he argues, the trial court

placed too much emphasis on her trustworthiness and ignored the fact that

Woffard’s tip was not based on specific, articulable facts necessary to justify the

stop.




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         Under Texas law, there is an inverse relationship between the reliability of

the informant and the amount of corroboration needed to justify the stop. See

Martinez, 348 S.W.3d at 923; Griffey, 241 S.W.3d at 705. Two cases illustrate this

point.    In Stolte, an officer was informed by his dispatcher that a caller had

reported a possible DWI and that the caller was following the suspect. Stolte, 991

S.W.2d at 342. The officer was given a description and license plate number of the

vehicle and told that the vehicle was traveling westbound and about to exit at

Bedford Road. Id. The officer confirmed that a vehicle matching the dispatcher’s

description and license plate number was traveling westbound and was exiting at

Bedford Road and then the officer stopped the vehicle. Id. The Fort Worth Court

of Appeals concluded that, in light of the totality of the circumstances, including

the immediate threat to public safety, the officer was justified in initiating an

investigatory stop after he confirmed that the vehicle, matching the description and

license plate number given, was located where the caller indicated. Id. at 343.

Therefore, the court held that the information from the unknown caller “was

sufficiently reliable to justify the investigative stop and had been adequately

corroborated by [the arresting officer] at the time of the detention.” Id.

         Similarly, in Nacu, an officer was approached by a manager of a nearby

restaurant who told him that a woman had been in the restaurant, she was

intoxicated, and she got into a car in the parking lot. Nacu, 373 S.W.3d at 692–93.

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The officer asked the manager to identify the woman and the manager pointed to

Nacu’s vehicle, which was still in the parking lot. Id. at 693. The officer stopped

Nacu’s vehicle. Id. The San Antonio Court of Appeals concluded that there was

reasonable suspicion for the stop because the information from the manager was

reliable and the officer sufficiently corroborated it. Id. at 694–95. The court

recognized that the manager’s statement that Nacu was intoxicated, when viewed

without context, was conclusory. Id. at 696. However, the court concluded that

the explanation provided by the manager—“that the driver of a vehicle had

previously been in her restaurant, was intoxicated, and trying to drive through

metal poles too narrow to accommodate a car”—provided the trial court with

specific, articulable facts to make an independent determination of whether the

detention was objectively reasonable. Id.

      Here, Troost testified that he was at a Chevron gas station in Kingwood

around 1:00 a.m., when he received a call on his cell phone from Woffard, who

worked at that Chevron and with whom Troost had spoken hundreds of times.

Troost testified that he believed Woffard was reliable and credible and that

Woffard informed him that an intoxicated man had just left her store and was

getting into a red truck. Troost immediately returned and confirmed that the only

truck in the parking lot was a red truck that was pulling up to the exit of the gas

station. Troost testified that a matter of seconds passed between the time of

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Woffard’s phone call and the time he identified the red truck. He pulled in behind

Taflinger’s truck and, rather than stop him solely on reasonable suspicion, he

waited to see if Taflinger committed a traffic violation. After observing Taflinger

commit what he believed to be a traffic violation, Troost stopped Taflinger and

ultimately arrested him.

      We conclude, based on the totality of the circumstances, that Woffard’s tip

and Troost’s corroboration, considered together, were sufficient to give Troost

reasonable suspicion to stop Taflinger. First, Troost was familiar with Woffard,

knew Woffard’s first and last name, had spoken with her hundreds of times, and

believed her to be reliable and credible. He was also familiar with the gas station

where she worked and was at that gas station when he received the call from

Woffard. Woffard relayed events that she had witnessed firsthand and gave Troost

a description of Taflinger’s vehicle. These factors all made Woffard’s tip reliable.

See Stolte, 991 S.W.2d at 342 (finding information received from informant

reliable because officer could learn identity of informant who stopped at scene,

informant placed himself in position to be held accountable for his intervention by

stopping at scene, informant relayed events that he personally witnessed, and

informant remained on phone with dispatcher to update and track suspect’s

location); see also Truley v. State, 242 S.W.3d 178, 181–82 (Tex. App.—Fort

Worth 2007, no pet.) (concluding that tip from gas station clerk was reliable

                                        10
because officer stopped at gas station frequently, knew clerk’s name, clerk was

calling from workplace, clerk relayed events she witnessed firsthand, clerk gave

officer description and license plate number of vehicle, and there was no

information that clerk was paid informant).

      Next, because Woffard’s tip was reliable, less corroboration was necessary

to create reasonable suspicion. See Martinez, 348 S.W.3d at 923; Griffey, 241

S.W.3d at 705. Here, Troost was at the gas station at the time he received the call,

and thus was able to corroborate Woffard’s tip within seconds. He observed that

the vehicle described by Woffard was in the parking lot and saw that no other

vehicle matching that description was there. Troost also observed the vehicle exit

the parking lot without signaling. And, while this behavior alone is not indicative

of intoxication, it provided a “small additional measure of corroboration” to

Woffard’s tip that Taflinger was intoxicated. See Reesing v. State, 140 S.W.3d

732, 735–37 (Tex. App.—Austin 2004, pet. ref’d) (concluding that appellant’s

observed behavior in parking lot—pausing in parking lot for what officer

considered to be long time absent any traffic and failing to signal turn—“while

alone not indicative of intoxication, gave a small additional measure of

corroboration to the caller’s report” that appellant was intoxicated). Additionally,

the suspected offense, DWI, involved an immediate threat and danger to public

safety. As the court noted in Stolte, “it would be wholly unreasonable . . . to

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require a police officer to ‘corroborate’ an informant’s tip by waiting for the

suspect to swerve out of his lane or otherwise jeopardize the safety of other

drivers.” Stolte, 991 S.W.2d at 343 n.4 (emphasis in original). Having considered

the totality of the circumstances, including the reliability of Woffard’s tip, Troost’s

corroboration, and the immediate threat and danger that an intoxicated driver poses

to public safety, we hold that Troost was objectively justified in initiating an

investigatory stop.    See id. at 343 (holding officer justified in conducting

investigatory stop, in light of immediate threat to public safety created by

intoxicated driver, after he located vehicle as described by informant); see also

Nacu, 373 S.W.3d at 695 (reasonable suspicion where officer testified that

manager appeared trustworthy and that he verified tip from manager by confirming

there was restaurant in vicinity and locating vehicle described by manager).

      Finally, Taflinger contends that even if Woffard’s tip was reliable and was

corroborated by Troost, her tip did not justify the stop because her statement that

Taflinger was “intoxicated” is purely conclusory. In support of this assertion,

Taflinger relies primarily on Ford v. State, in which the Court of Criminal Appeals

held that the arresting officer’s conclusory statement that the defendant was

“following too close” did not establish reasonable suspicion for an investigatory

stop. Ford, 158 S.W.3d at 493–94. The Court explained that the record revealed

“an absence of any facts allowing an appellate court to determine the

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circumstances upon which [the arresting officer] could reasonably conclude that

Ford actually was, had been, or soon would have been engaged in criminal

activity.” Id. at 493. Without specific, articulable facts, the Court had no means to

assess whether the arresting officer’s opinion that Ford was following too closely

was objectively reasonable. Id.

      We note first that Ford did not involve a tip from an informant and,

therefore, the Court of Criminal Appeals did not conduct the analysis we have

applied here.   Second, in Ford, the officer’s opinion that the appellant was

“following too closely,” which was held to be an “ineffective substitute[] for

specific, articulable facts,” was the only testimony offered to establish reasonable

suspicion. Ford, 158 S.W.3d at 493. Here, in contrast, Woffard’s statement that

Taflinger was intoxicated, while arguably conclusory, was supported by other

evidence that would allow a reviewing court to determine whether Troost’s

detention of Taflinger was objectively reasonable—Troost’s testimony that, upon

receiving this information, he immediately pulled into the gas station parking lot,

identified the red truck, and observed Taflinger exiting the parking lot and crossing

two lanes of traffic without signaling. See Nacu, 373 S.W.3d at 696 (concluding

that informant’s statement that appellant was “too intoxicated to drive,” while

standing alone appeared conclusory, when viewed in context with informant’s

other statements that appellant had just been in her restaurant and was trying to

                                         13
drive through metal poles too narrow to accommodate a car, gave officer specific,

articulable facts that would allow reviewing court to determine whether appellant’s

detention was objectively reasonable).

        We overrule Taflinger’s first point of error. Because we have found that

there was reasonable suspicion for the stop, we need not consider Taflinger’s

second point of error.

                                    Conclusion

        We affirm the trial court’s judgment. We dismiss all pending motions as

moot.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
Justice Sharp, dissenting. Opinion to follow.




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