                                                                                           ACCEPTED
                                                                                      03-14-00806-CR
                                                                                              4723914
                                                                             THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 4/1/2015 10:52:20 AM
                            No. 03-14-00806-CR                                       JEFFREY D. KYLE
                                                                                                CLERK




                                                                       FILED IN
                       In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                               Austin, Texas
                                                                4/1/2015 10:52:20 AM
                                                                  JEFFREY D. KYLE
                                                                        Clerk

                           DELANE DUMAS,
                                             Appellant,

                                        v.

                        THE STATE OF TEXAS,
                                             Appellee.


                On appeal from the County Court-at-Law Number Five,
                                 Travis County, Texas
                          Trial Cause No. C-1-CR-13-219171




                              STATE'S BRIEF


                                      DAVID A. ESCAMILLA
                                      TRAVIS COUNTY ATTORNEY


                                      GISELLE HORTON
                                      ASSISTANT TRAVIS COUNTY ATTORNEY
                                      State Bar Number 10018000
                                      Post Office Box 1748
                                      Austin, Texas 78767
                                      Telephone: (512)854-9415
                                      TCAppellate@traviscountytx.gov

April 1, 2015                         ATTORNEYS FOR THE STATE OF TEXAS


                       ORAL ARGUMENT IS NOT REQUESTED
                                  TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................ iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND .................................................. 2

ISSUES PRESENTED .............................................. 4

SUMMARY OF THE STATE'S ARGUMENT ......................... 4

ARGUMENT

       Reply Point One: The admissibility of State's Exhibit #4 under
       Rule 403 is not preserved for review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

       Reply Point Two: The trial court properly concluded that
       the initial detention was lawful, and therefore properly
       admitted State's Exhibit #3 .................................... 10

               Reasonable suspicion, generally ......................... 11

               The 9-1-1 call was inherently reliable, and therefore
               sufficiently reliable to credit the allegation that an
               erratically-driven dark or black station wagon with
               a certain license number was at the predicted location
               on the interstate highway ............................... 14

               The law imputes the police dispatcher's knowledge of
               the 9-1-1 call's details to the detaining officer. . . . . . . . . . . . . . 16



                                                 i
          Discussion of Court of Criminal Appeals opinions that
          illustrate the amount of corroboration required when the
          informant's report is inherently reliable. . ................. 17

               •     Derichsweiler v. State: Police may lawfully
               act on a called-in report of suspicious but not
               inherently criminal activity ......................... 17

               •     Brother v. State: A motorist calls 9-1-1 to
               describe a motorist's car, location, and erratic driving .. 19

          The 9-1-1 call was sufficiently corroborated ............... 21

          The substance of the 9-1-1 call objectively supported
          reasonable suspicion to believe that criminal activity
          was afoot. ............................................. 20

          Additionally, the detaining officer had reasonable
          suspicion independent of the detailed information
          relayed in the 9-1-1 call. . ............................... 21

PRAYER ........................................................ 22

CERTIFICATE OF COMPLIANCE ................................. 23

CERTIFICATE OF SERVICE ....................................... 23




                                   ii
                            INDEX OF AUTHORITIES
Statutes                                                         Page
TEX. PENAL CODE§ 37.08
      (West Supp. 2014) ........................................... 15

Rules
TEX. R. APP. P. 33.1 .............................................. 7, 9
TEX. R. EVID. 401 .................................................. 9
TEX. R. EVID. 403 .................................................. 7

Cases
Adams v. Williams, 407 U.S. 143
       (1972) ..................................................... 14
Alabama v. White, 496 U.S. 325
      (1990) ..................................................... 12
Brother v. State, 166 S.W.3d 255
       (Tex. Crim. App. 2005) ........................ 13, 14, 15, 19, 20, 21
Curtis v. State, 238 S.W.3d 376
      (Tex. Crim. App. 2007) ....................................... 22
Derichsweiler v. State, 348 S.W.3d 906
      (Tex. Crim. App. 2011) . . . . . . . . . . . 12, 13, 14, 15, 16, 17, 18, 19, 20, 21
Foster v. State, 326 S.W.3d 609
      (Tex. Crim. App. 2010) ................................. 12, 13, 21
Hime v. State, 998 S.W.2d 893
      (Tex. App.-Houston [14th Dist.] 1999, pet. ref' d) .................. 15
Illinois v. Gates, 462 U.S. 213
       (1983) ..................................................... 14
Johnson v. State, 414 S.W.3d 184
       (Tex. Crim. App. 2013) ....................................... 12
Martinez v. State, 348 S.W.3d 919
       (Tex. Crim. App. 2011) ....................................... 15
Pipkin v. State, 114 S.W.3d 649
       (Tex. App.-Fort Worth 2003, no pet.) ............................ 15

                                           111
Reesing v. State, 140 S.W.3d 732
        (Tex. App.-Austin 2004, pet. ref' d) ........................ 12, 15
Resendez v. State, 306 S.W.3d 308
        (Tex. Crim. App. 2009) ........................................ 8
State v. Dixon, 206 S.W.3d 587
        (Tex. Crim. App. 2006) ....................................... 11
State v. Fudge, 42 S.W.3d 226
        (Tex. App.-Austin 2001, no pet.) .......................... 12, 14
State v. Nelson, 228 S.W.3d 899
       (Tex. App.-Austin 2007, no pet.) ............................. 20
State v. Sailo, 910 S.W.2d 184
       (Tex. App.-Fort Worth 1995, pet. ref' d) ....................... 15
State v. Stolte, 991 S.W.2d 336
       (Tex. App.-Fort Worth 1999, no pet.) .............................. 15
Taflinger v. State, 414 S.W.3d 881
       (Tex. App.-Houston [1st Dist.] 2013, no pet.) ..................... 14
Terry v. Ohio, 392 U.S. 1
      (1968) .................................................. 12, 13
United States v. Basey, 816 F.2d 980
      (5th Cir. 1987) ............................................... 15
United States v. Sierra-Hernandez, 581 F.2d 760
      (9th Cir. 1978) .............................................. 15
Ware v. State, 724 S.W.2d 38
      (Tex. Crim. App. 1986) ........................................ 14
Woods v. State, 956 S.W.2d 33
      (Tex. Crim. App. 1997) ....................................... 13




                                     IV
                        STATEMENT OF THE CASE

      This is a defense appeal from a conviction for driving while

intoxicated (DWI), second offense? After the jury found him guilty of DWI,

Dumas pled "true" to the prior-conviction enhancement paragraph. CR

43-44; 3 RR 208. nn necember 11, 2014, the trial court assessed

punishment at one year in jail and a $4,000 fine, but suspended imposition

of this sentence and placed Dumas on community supervision for twenty

months. CR 44. As conditions of probation, Dumas was required to serve

five days in jail, surrender his driver's license for one year, participate in an

ignition interlock program, obtain drug and alcohol evaluations, attend

rehabilitative programs and courses, and complete 80 hours of community

service. CR 44-47. Dumas gave written notice of appeal the same day he

was sentenced. CR 55, 57.




      The information contained two enhancement paragraphs, alleging an open
container and a prior DWI conviction. CR 13.
                                        1
                              BACKGROUND

      At around 11:00 p.m. on a Saturday night, Austin police Officer

Eberhardt responded to a call from the police dispatcher, who related that

a "OWl/reckless" driver was approaching Eberhardt's position from

northbound I-35. 3 RR 20. This information came to police attention from

an identified motorist's unsolicited 9-1-1 call. The dispatcher relayed the

car's description-a dark, maybe black station wagon-the car's license

plate number, and the motorist/caller's observation that the car had nearly

sideswiped him and had been seen going 90 miles per hour, swerving

between lanes. 3 RR 20, 22; 4 RR State's Exhibit #4 (the 9-1-1 call).

      Eberhardt waited at the intersection of I-35 and Ben White

Boulevard. When a car matching the given description went by, he began

to follow it. 3 RR 22. He confirmed the car's license number with the

dispatcher, and saw the car weaving in its own lane. 3 RR 22-23; 4 RR

State's Exhibit #3 (the dashcam video)     @   10:56:21-10:56:46. Although

Eberhardt had not activated his overhead lights, the car he was following

exited the interstate, travelled briefly on the service road, then merged back
                                       2
onto I-35 without signalling. 3 RR 23. Suspecting intoxication, Eberhardt

initiated a detention. 3 RR 24, 66.

      Dumas, the driver, admitted to taking hydrocodone three to four

hours earlier, but denied consuming alcohol. 3 RR 32; 4 RR State's Exhibit

#3. Eberhardt found a nearly-empty flask of some alcoholic beverage in the

center console. 3 RR 80. Dumas's speech was slurred. 3 RR 33, 125. A

moderate odor of alcohol emanated from his person. 3 RR 28, 29. He had

difficulty tracking the officer with his eyes, and difficulty retrieving his

driver's license and proof of insurance. 3 RR 27-28. He was confused; he

stated that he was coming from a friend's house on Riverside and was

headed home to the "Y" on Highway 290, but the statement did not make

sense given his direction of travel. 3 RR 25. His balance was poor, and he

swayed while standing after getting out of his car. 3 RR 77, 123.

      Dumas displayed all six clues on the horizontal gaze nystagmus test.

3 RR 47. He initially attempted other standardized field sobriety tests, but

gave up and refused to participate further when it became clear that he

couldn't perform them. 3 RR 53-54; 4 RR State's Exhibit #3. He told
                                       3
Eberhardt that he could not complete the other tests because he had leg

and spinal conditions. 3 RR 53. No trial evidence, however, supported this

statement. Dumas refused to give a specimen of his breath or blood for

testing purposes. 3 RR 131-33.

                           ISSUES PRESENTED

      One: Did the trial court err in overruling Dumas's Rule 403 objection

and admitting State's Exhibit #4, the recording of the identified informant's

call to 9-1-1?

      Two: Was State's Exhibit #3, the dash cam video, unlawfully obtained

because the detaining officer was not aware of all the particulars of the

9-1-1 call and did not personally observe conduct amounting to a criminal

offense?

                 SUMMARY OF THE STATE'S ARGUMENT

      One: Trial counsel never lodged a Rule 403 objection to State's

Exhibit #4. This point of error is therefore unpreserved.

      Two: The law imputes the police dispatcher's knowledge of the 9-1-1

call's contents to Officer Eberhardt, a cooperating officer. The information
                                      4
conveyed in the 9-1-1 call gave rise to reasonable suspicion, and was

sufficiently corroborated when the officer identified the offending vehicle

by its description, location, and license-plate number.

      Independent of that corroboration, the totality of the circumstances

shows that the detaining officer personally observed conduct giving rise to

reasonable suspicion when he saw the car weave within its own lane late at

night, and exit and re-enter the interstate highway for no apparent reason.

Because the dashcam video was lawfully obtained, the trial court did not

abuse its discretion in admitting it.

                                  ARGUMENT

      Reply Point One: The admissibility of State's Exhibit #4
      under Rule 403 is not preserved for review.

      An identified motorist called 9-1-1 to report Dumas's erratic driving

on the night in question. A recording of that call was admitted at trial and

                                              2
published to the jury as State's Exhibit #4. 3 RR 8, 60; 4 RR State's Exhibit


  2
      State's Exhibit #4 involves the transfer of a concerned motorist's 9-1-1 call
from the Hays County police dispatcher to the Travis County dispatcher; Dumas
was quickly leaving Hays and entering Travis County. Appellate counsel
mistakes the Hays County dispatcher's voice for that of a second 9-1-1 caller. But
                                         5
#4. In it, a Hays County dispatcher briefly relayed the information from the

caller/motorist: a car described as a dark-colored station wagon with

license plate BXL 7952 was northbound on I-35, passing the 220 exit, and

about to enter Travis County. 4 RR State's Exhibit #4@ 0:06. The car was

"unable to maintain a single lane. It is in the middle lane at this time

driving approximately 90 miles per hour." 4 RR State's Exhibit #4@ 0:35.

The Hays County dispatcher then transferred the "reckless driving" call to

the Austin/Travis County 9-1-1 operator. State's Exhibit #4 @0:38.

      The caller identified himself by name to the Travis County

dispatcher, gave his telephone number, and explained, "This guy we've

been following-he's been actually-he almost side-swiped us and so we

called 9-1-1 and he was real erratic on the speed." 4 RR State's Exhibit #4 @

0:44, 1:00. He verified the car's license plate number. 4 RR State's Exhibit #4

@1:20. He described what the station wagon was doing and its location:

"We're at exit 225. He's in the right hand lane. He's been everywhere from




there was only one caller, identified as J.D. Hines.
                                          6
the left hand lane to the middle lane to side-swiping us. Oh. He's looking

down and texting." 4 RR State's Exhibit #4@ 1:39.

         Dumas's first point contends that State's Exhibit #4-the recorded

9-1-1 call- was inadmissible under Rule 403 "because the probative value

of the two calls was substantially outweighed by the danger of unfair

prejudice, confusion of the issues, and misleading the jury[.]" Dumas's

Brief, p. 16. He speculates that, if the 9-1-1 call had not been admitted, "the

jury may have acquitted Dumas since the traffic stop video did not show

someone obviously intoxicated" or any traffic offenses. Dumas's Brief,

p. 16.

         The trial court never heard or ruled on a Rule 403 objection to State's

Exhibit #4. For this reason, Dumas's first point is unpreserved. TEX. R. APP.

P. 33.1.

         Rule 403 provides that relevant evidence may be excluded "if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury[.]" TEX. R. EVID.

403. Defense counsel's reference at trial to "unfair prejudice" did not put

                                         7
the trial court on notice of a Rule 403 objection. When assessing a party's

trial complaint, courts must look at the context. Resendez v. State, 306

S.W.3d 308, 313 (Tex. Crim. App. 2009). Seen in context, the "unfair

prejudice" reference was made in furtherance of a confrontation objection:

"[T]here's a real danger of unfair prejudice [in admitting Exhibit #4], which

is why you have that right of confrontation." 3 RR 6-7. Indeed, the

following record excerpts show that Dumas objected to State's Exhibit #4

solely on Confrontation Clause grounds:

     •     "So the existence of the 911 call is admissible. But the content,
what the person said they saw, I've got a right to cross-examine them on."
3RR4.

      •      "But either way, I believe I have a right to confrontation of the
witness if they're going to get into the substance of what the witness
allegedly saw." 3 RR 4.

      •      "So without any opportunity to cross-examine [the 9-1-1
caller], certainly we have a confrontation objection." 3 RR 6.

       •     "The whole idea of confrontation is you want your own lawyer
to be able to ask the questions and not a person working for the court."
3RR7.

     , •    "I do believe that it violates the United States Constitution in
that he has a right to confront the witness." 3 RR 59.

                                       8
      No reasonable trial court could have understood from trial counsel's

arguments that Dumas was making a Rule 403 objection. Because Dumas's

contention on appeal fails to comport with his trial objections, his first

point of error is not preserved for review. TEX. R. APP. P. 33.1.

      If the point had been preserved, the trial court properly admitted

State's Exhibit #4 for at least two reasons. First, the exhibit was relevane to

the elements of operating a motor vehicle while intoxicated. And second, it

gave contextual background by explaining why Eberhardt initially began

to observe the car Dumas was driving and eventually pulled it over. This

background information was necessary because the jury was instructed

that it must first find the detention lawful before it could decide guilt-

innocence. In short, evidence showing the reason for the initial

detention-which State's Exhibit #4 partially supplied-was of

consequence in determining the action, and was therefore admissible.

CR40-41.


  3
      Evidence is relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action. TEX. R. Evm. 401.
                                         9
      Reply Point Two: The trial court properly concluded that the
      initial detention was lawful, and therefore properly admitted
      State's Exhibit #3.

      Dumas's second point contends that Officer Eberhardt did not have

reasonable suspicion to initially detain him, and that the entirety of State's

Exhibit #3, the dashcam video, was therefore inadmissible as fruit of the

poisonous tree. Dumas fails to note that part of State's Exhibit #3 depicts

events that transpired before the allegedly unlawful detention, and which

therefore could not be subject to suppression as unlawfully obtained.

Dumas also does not contend on appeal that any other evidence flowing

from the stop, such as the officer's testimony, was subject to suppression

under the exclusionary rule.


      Dumas specifically contends that Eberhardt did not have reasonable

suspicion to detain because Eberhardt (1) was not aware of sufficient facts

from the 9-1-1 call, and (2) did not sufficiently corroborate the informant's

report by personally observing criminal conduct. Dumas's Brief, pp. 22-23.

Defense counsel did not object at trial to the admissibility of State's Exhibit

#3 or any other evidence on grounds that the 9-1-1 caller's information was
                                      10
insufficiently corroborated. Instead, outside the jury's presence, he orally

moved to "suppress the entire stop" on grounds that Dumas had not

committed a traffic offense by failing to signal his exit off of and his re-

entry onto the interstate highway. 3 RR 62-63. The trial court agreed that

the transportation code did not "require a blinker," but overruled the

objection, concluding that "there was reasonable suspicion to stop the

vehicle to investigate either a reckless driving or a driving while

intoxicated charge based upon the evidence that's been admitted." 3 RR 70.

      Appellate courts review a suppression ruling for an abuse of

discretion, viewing the record in the "light most favorable to the trial

court's conclusion and revers[ing] the judgment only if it is outside the

zone of reasonable disagreement." State v. Dixon, 206 S.W.3d 587, 590 (Tex.

Crim. App. 2006).

      Reasonable suspicion, generally

      A law enforcement officer may stop and briefly detain a person

suspected of criminal activity on less information than is constitutionally

required for probable cause to arrest, because a temporary detention for

                                       11
investigation is considered a lesser intrusion upon personal security. Terry

v. Ohio, 392 U.S. 1, 21-22 (1968); Johnson v. State, 414 S.W.3d 184, 191 (Tex.

Crim. App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.

App. 2011); Reesing v. State, 140 S.W.3d 732, 735 (Tex. App.-Austin 2004,

pet. ref' d); State v. Fudf\e,
--                        -
                               42 S.W.3d 226, 229 (Tex. App.- Austin 2001, no
                                                         ~   ~




pet.).

         Reasonable suspicion is a less demanding standard not only in
         the sense that it 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 arise from information that is less reliable than that
         required to show probable cause.

Derichsweiler, 348 S.W.3d at 916 n.41 (quoting Alabama v. White, 496 U.S. 325

(1990)).

         To justify a brief detention for investigative purposes, 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-

14 (Tex. Crim. App. 2010). Specifically, the officer must have some minimal

level of objective justification for making the stop. That is, the officer must


                                         12
be able to "point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion" on

the freedom of the person being detained. Id. (citing Terry, 392 U.S. at 15);

see also Derichsweiler, 348 S.W.3d at 914; Brother v. State, 166 S.W.3d 255, 257

(Tex. Crim. App. 2005). A brief intrusion is warranted, for instance, where

the officer reasonably suspects that the person detained actually is, has

been, or soon will be engaged in criminal activity. Derichsweiler, 348 S.W.3d

at 914; Brother, 166 S.W.3d at 257. The reasonableness of a given detention

turns on the totality of the circumstances, and considers the public and

private interests that are at stake. Brother, 166 S.W.3d at 259 n.6.

      The facts and circumstances that may provide reasonable suspicion

of criminal activity need not themselves be criminal in nature but may

include facts that in some way would increase the likelihood of the

presence or occurrence of criminal activity. Derichsweiler, 348 S.W.3d at 914;

Foster, 326 S.W.3d at 614; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.

1997). Additionally, the factual basis for stopping a vehicle need not arise

from the officer's personal observation, but may be supplied by

                                       13
information acquired from another person. Derichsweiler, 348 S.W.3d at 914

(citing Adams v. Williams, 407 U.S. 143, 147 (1972)); Brother, 166 S.W.3d at

257. For instance, an officer may rely upon information received through

an informant, rather than on his direct observations, so long as the

informant's statement is reasonably corroborated by other matters within

the officer's knowledge. Illinois v. Gates, 462 U.S. 213, 242 (1983);

Derichsweiler, 348 S.W.3d at 915.

      The 9-1-1 call was inherently reliable, and therefore sufficiently
reliable to credit the allegation that an erratically-driven dark or black
station wagon with a certain license number was at the predicted
location on the interstate highway.

      The evidence clearly shows that the informant identified himself to

the police dispatcher. 4 RR State's Exhibit #4. Texas cases consistently and

uniformly hold that, when police receive information from an identified or

identifiable private citizen-eyewitness who initiates contact with the police

to report another person's suspected criminal act, that information is

                                    4
inherently credible and reliable. Unlike a person who makes an


 4
      Derichsweiler, 348 S.W.3d at 914-15; Brother, 166 S.W.3d at 257; Ware v. State,
724 S.W.2d 38, 40 (Tex. Crim. App. 1986); Fudge, 42 S.W.3d at 232; Taflinger v.
                                         14
anonymous telephone call, the identified or identifiable eyewitness-

informant puts himself in a position to be held accountable for his

intervention. See TEX. PENAL CODE§ 37.08 (West Supp. 2014) (false report to

a peace officer or law enforcement employee); Martinez v. State, 348 S.W.3d

919, 923 (Tex. Crim. App. 2011); see also Reesing, 140 S.W.3d at 737. Thus,

the reliability of the information is increased. State v. Sailo, 910 S.W.2d 184,

188 (Tex. App.-Fort Worth 1995, pet. ref' d) (quoting United States v. Sierra-

Hernandez, 581 F.2d 760, 763 (9th Cir. 1978)). And, where the reliability of

the information is increased, less corroboration is necessary. Martinez, 348

S.W.3d at 923 (citing Brother, 166 S.W.3d at 257); Derichsweiler, 348 S.W.3d

at 914.




State, 414 S.W.3d 881, 885 (Tex. App.-Houston [1st Dist.] 2013, no pet.); Pipkin v.
State, 114 S.W.3d 649, 655 (Tex. App.-Fort Worth 2003, no pet.); Hime v. State,
998 S.W.2d 893, 895 (Tex. App.-Houston [14th Dist.] 1999, pet. ref' d); State v.
Stolte, 991 S.W.2d 336, 341 (Tex. App.-Fort Worth 1999, no pet.). See also, United
States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) ("[C]itizen reports of criminal
activity have been deemed inherently reliable in Texas Terry-stop cases.").
                                         15
       The law imputes the police dispatcher's knowledge of the 9-1-1
call's details to the detaining officer.

      Dumas contends among other things that Eberhardt did not have

reasonable suspicion because he did not personally know all the details of

the 9-1-1 call before he initiated a detention. But the law does not require

this. In assessing reasonable suspicion, "a reviewing court looks to the

totality of the objective information known collectively to the cooperating

police officers, including the 9-1-1 dispatcher." Derichsweiler, 348 S.W.3d at

915. "The detaining officer need not be personally aware of every fact that

objectively supports reasonable suspicion to detain." Id. at 914. Thus the

rule is that the cumulative information known to cooperating officers at the

time of the stop must be considered in determining whether reasonable

suspicion exists. Id. Eberhardt and the 9-1-1 police dispatcher are regarded

as "cooperating officers" for purposes of making this determination. Id.




                                      16
     Discussion of Court of Criminal Appeals opinions that illustrate
the amount of corroboration required when the informant's report is
inherently reliable.

      The following two opinions illustrate the amount and nature of

corroboration that courts require when citizens come forward to report

suspicious activity they have observed firsthand.

            •     Derichsweiler v. State: Police may lawfully act on a
      called-in report of suspicious but not inherently criminal activity.

      In Derichsweiler, a man and his wife were waiting in the drive-

through lane of a McDonald's restaurant at night when a man drove up

next to them and grinned, staring at them for thirty seconds to a minute

before driving on. Derichsweiler, 348 S.W.3d at 909. The man circled the

restaurant and repeated the behavior as the couple waited for their food.

Id. Feeling threatened, the husband called 9-1-1. Id. at 910. As the husband

spoke to the police dispatcher, the man drove to the adjacent Wal-Mart

parking lot and appeared to engage in similar conduct, pulling alongside at

least two parked cars. Derichsweiler, 348 S.W.3d at 911. The husband

"admitted that he had witnessed no criminal conduct" or overt threat. Id.


                                     17
      The responding officer identified the vehicle and initiated an

investigative detention. Derichsweiler, 348 S.W.3d at 911. All that the officer

knew was the caller's name, the identifying characteristics and location of

the car, and that the complainant thought that the car was suspicious and

wanted the police to check it out. Id. n.6. The dispatcher did not pass along

the details that had served to raise the couple's suspicions. Id. at 911. When

the officer contacted the driver, he smelled a strong alcoholic odor and

began a DWI investigation. Id.

      The Court of Criminal Appeals explained that, under these facts,

there was no issue with respect to the reliability of the eyewitness report.

Id. at 915. The report was made by persons who were identified and

therefore answerable for the details they provided based on their first-hand

perceptions. Id. at 915. Similarly, the Court saw no issue with the called-in

report as part of the information upon which the officer could rely in

establishing reasonable suspicion. Id. Although the officer was not

apprised of all the information relayed, it was part of the collective

knowledge known to the cooperating officers, which included the police
                                      18
dispatcher. Derichsweiler, 348 S.W.3d at 915. The only issue in the case was

whether "the totality of that reliable information provided specific,

articulable facts that, combined with reasonable inferences to be derived

from those facts, would lead to the reasonable conclusion that the [suspect]

was committing, or soon would be engaged in, some type of criminal
                                        -   -             -   -




activity." Id. at 915-16.

      The Court concluded that it did. Even though the informants did not

observe or report any particular criminal conduct, the reported behavior

was sufficiently bizarre for police to make a "brief stop to investigate, if

only by their presence to avert an inchoate offense." Id. at 916.

           •      Brother v. State: A motorist calls 9-1-1 to describe a
      motorist's car, location, and erratic driving.

      In Brother, the citizen-eyewitness called the 9-1-1 dispatcher on her

cell phone to report speeding, tailgating, and weaving across several lanes

of traffic. Brother, 166 S.W.3d at 256. At the dispatcher's request, the

eyewitness followed the suspect and activated her hazard lights to help the

officer quickly identify the vehicle. Id. at 258. The eyewitness continued to


                                       19
provide her observations to the dispatcher until the arresting officer

stopped the car in question. Id. at 257. The officer did not personally

witness any erratic driving but testified that the facts relayed by the police

dispatcher "sounded like a possible intoxicated driver." Id.

      Upholding the stop as lawful, the Court unequivocally rejected the

defense argument that an officer must personally observe activity giving

rise to reasonable suspicion.

      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.

Id. at 259.

      The 9-1-1 call was sufficiently corroborated when Officer Eberhardt

identified the vehicle by its description, location, and license number.

Derichsweiler, 348 S.W.3d at 915; Brother, 166 S.W.3d at 258-59. The

identified caller,s information was further corroborated when Eberhardt

saw Dumas swerving within his own lane. See State v. Nelson, 228 S.W.3d

899, 904 (Tex. App.-Austin 2007, no pet.).
                                      20
     The substance of the 9-1-1 call objectively supported reasonable
suspicion to believe that criminal activity was afoot.

      Because the identified caller's information was sufficiently

corroborated, the only question is whether the information that the known

citizen-informant provided, viewed under the totality of the circumstances,

"objectively supports a reasonable suspicion to believe that criminal

activity is afoot." Derichsweiler, 348 S.W.3d at 915.

      The 9-1-1 caller saw the station wagon swerve in and out of traffic

lanes, travel 90 miles an hour, and nearly sideswipe him. 3 RR 20, 22. The

driver of this car was texting. This information objectively supports a

reasonable suspicion that criminal activity was afoot. Foster, 326 S.W.3d at

613 n.10 (unusual driving late at night, no observed traffic offense); Brother,

166 S.W.3d at 256 (speeding, tailgating, weaving across several lanes).

     Additionally, the detaining officer had reasonable suspicion
independent of the detailed information relayed in the 9-1-1 call.

      The facts of Dumas's case are even stronger than those of Brother

because Eberhardt saw Dumas swerving within his own lane, failing to use

a turn signal, and inexplicably exiting and re-entering the highway late one
                                       21
Saturday night. 3 RR 22-23. From these observations alone Eberhardt could

have rationally inferred that Dumas was driving recklessly or driving

while intoxicated. Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App.

2007).

                                    PRAYER

         For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule the points of error and affirm the

judgment of conviction for driving while intoxicated- second offense.

                                      Respectfully submitted,

                                      DAVID A. ESCAMILLA
                                      TRAVIS COUNTY ATTORNEY




                                      Assist n ravis County Attorney
                                              r Number 10018000
                                      Post Office Box 1748
                                      Austin, Texas 78767
                                      Telephone: (512)854-9415
                                      TCAppellate@traviscountytx.gov

                                      ATTORNEYS FOR THE STATE OF TEXAS

                                        22
                     CERTIFICATE OF COMPLIANCE

      Relying on Corel WordPerfect's word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document in its entirety contains 4730 words.




      I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Mr. Dumas's attorney of record, Mr.
Gregory Sherwood, at gsherwood@mail.com, on or before AprilS, 2015.




                                    Giselle




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