Opinion filed May 22, 2014




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-12-00125-CR
                                    __________

                 LAURA KATHRYN BENSON, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                 On Appeal from the 39th Judicial District Court
                                Haskell County, Texas
                             Trial Court Cause No. 6495



                      MEMORANDUM OPINION
      The jury convicted Laura Kathryn Benson of the offense of unlawful use of
a criminal instrument. 1 The jury assessed her punishment at confinement for two
years in the State Jail Division of the Texas Department of Criminal Justice and



      1
       See TEX. PENAL CODE ANN. § 16.01 (West Supp. 2013).
imposed a fine of $10,000. In a single issue, Appellant challenges the trial court’s
denial of her motion to suppress. We affirm.
                                Background Facts
      At the hearing on the motion to suppress, Deputy Greg Hearn of the Haskell
County Sheriff’s Department testified that he was involved in an investigation
regarding an anhydrous ammonia tank that was stored in an old gin yard near his
house in Rochester. Deputy Hearn had been monitoring the anhydrous tank for a
couple of months after officers in the Sheriff’s Department had noticed evidence of
tampering and possible theft of anhydrous ammonia from the tank. Anhydrous
ammonia is commonly used as an agent in the manufacture of methamphetamine.
Around 4:00 a.m. on the night in question, Deputy Hearn was awakened by “a lot
of racket.” Deputy Hearn heard dogs barking and the sound of a vehicle with loud
mufflers. Deputy Hearn got up, got dressed in his uniform, and set out in his patrol
vehicle in the direction of the anhydrous tank. Deputy Hearn turned off his street
and looked down the road at the tank. Deputy Hearn did not see anyone or any
suspicious activity near the tank, and he continued down the road past a storage
facility. Deputy Hearn saw a pickup parked behind the storage facility that was
facing toward the anhydrous tank, which was less than a block away.             The
vehicle’s lights were off and its cab was not illuminated, but Deputy Hearn could
see that there were people inside it. As Deputy Hearn drove by the storage facility
and the pickup, the pickup’s lights turned on and it pulled away in the opposite
direction of Deputy Hearn’s patrol car.        Deputy Hearn made a U-turn and
conducted an investigatory stop on the pickup. As Deputy Hearn walked toward
the pickup, he immediately saw tanks lying in the bed. The tanks appeared to be
adapted to hold something other than what they were supposed to hold. After
seeing the tanks in the back of the pickup, Deputy Hearn walked over to the
anhydrous tank and saw a propane tank attached to it with a rubber tube. The
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propane tank was in the process of being filled with anhydrous ammonia.
Deputy Hearn went back to the pickup and arrested both of its occupants, including
Appellant, who was the driver.
      Deputy Hearn testified that he decided to stop the pickup that Appellant was
driving based on its suspicious location in the storage facility parking lot, its
physical proximity to the anhydrous tank, the time of the day, and the fact that the
pickup did not leave the storage facility until Appellant saw him drive by in the
patrol car. Deputy Hearn stated that it is “almost unheard of” to encounter a
blacked-out vehicle at 4:00 a.m. in Rochester. Although Deputy Hearn stated that
he initially woke up after hearing a vehicle with loud mufflers, he determined that
the pickup he stopped did not have loud mufflers or exhaust. Moreover, Deputy
Hearn denied observing Appellant committing any traffic violations.
      Haskell County Sheriff David Halliburton testified that he had ordered
Deputy Hearn to monitor the anhydrous tank in the old gin yard that was located
about a block from Deputy Hearn’s house in Rochester. According to Sheriff
Halliburton, police had been watching the anhydrous tank because apparent theft
and suspicious activity had occurred there in the past.
      At the conclusion of the hearing, the trial court denied Appellant’s motion to
suppress.
                                 Standard of Review
      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In
reviewing a ruling on a motion to suppress, we apply a bifurcated standard of
review. Id. at 922–23. First, we afford almost total deference to the trial court’s
determination of historical facts and of mixed questions of law and fact that turn on
the weight or credibility of the evidence. Id. at 922–23. Second, we review
de novo the trial court’s determination of pure questions of law and mixed
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questions of law and fact that do not depend on credibility determinations. Id. at
923.
                                      Analysis
       Appellant contends that the trial court erred when it denied her motion to
suppress the evidence obtained as a result of the traffic stop because Deputy Hearn
lacked reasonable suspicion to justify the initial stop of Appellant’s vehicle.
Accordingly, we direct our analysis to a review of Deputy Hearn’s basis for
stopping the vehicle that Appellant was driving.
       Under Terry v. Ohio, 392 U.S. 1 (1968), the police can stop and briefly
detain a person for investigative purposes if they have a reasonable suspicion
supported by articulable facts that criminal activity may be afoot. United States v.
Sokolow, 490 U.S. 1, 7 (1989) (citing Terry, 392 U.S. at 30); Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). Reasonable suspicion exists
if the officer has specific, articulable facts that, when combined with reasonable
inferences from those facts, would lead him to reasonably conclude that a person
is, has been, or soon will be engaging in criminal activity. Derichsweiler, 348
S.W.3d at 914. This is an objective standard that disregards the subjective intent of
the officer making the stop and looks solely to whether an objective basis for the
stop exists.   Id.   It also looks to the totality of the circumstances; those
circumstances may all seem innocent enough in isolation, but if they combine to
reasonably suggest the imminence of criminal conduct, an investigative detention
is justified. Id. The relevant inquiry is not whether particular conduct is innocent
or criminal, but the degree of suspicion that attaches to particular noncriminal acts.
Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Whether the totality
of the circumstances is sufficient to support an officer’s reasonable suspicion is a
legal question that we review de novo. See Madden v. State, 242 S.W.3d 504, 517
(Tex. Crim. App. 2007).
                                          4
      The facts invoked to justify an investigative detention must support more
than a mere hunch or good faith intuition that criminal activity is afoot.
Derichsweiler, 348 S.W.3d at 916. To support a finding of reasonable suspicion,
the specific facts articulated by the detaining officer must show some unusual
activity, some evidence that connects the detainee to the unusual activity, and some
indication that the unusual activity is related to a crime. Martinez, 348 S.W.3d at
923. However, there is no requirement that the officer suspect that a particular
offense is being committed; it is enough if the facts suggest that something of an
apparently criminal nature is brewing. Derichsweiler, 348 S.W.3d at 916–17.
      At the outset, we note that Texas Courts of Appeals have analyzed similar
facts to determine whether a police officer had sufficient grounds to initiate a
traffic stop, and they have arrived at differing results. For example, in Tanner v.
State, 228 S.W.3d 852 (Tex. App.—Austin 2007, no pet.), the Austin Court of
Appeals affirmed the trial court’s denial of a motion to suppress, holding that an
officer had reasonable suspicion to justify a traffic stop of an individual walking
away from a dark area behind a business that was closed for the night. By contrast,
in Klare v. State, 76 S.W.3d 68 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d),
the Houston Court of Appeals reversed the trial court’s denial of a motion to
suppress the results of a traffic stop that was initiated after an officer saw a vehicle
parked behind a strip shopping center at 2:30 a.m. The officer in Klare testified
that he initiated the stop based on the time of day that he saw the vehicle, the
proximity of the parked vehicle to a closed business, and a history of burglaries in
the area. Id. at 71. The Klare court determined that these factors focused on the
suspect’s surroundings rather than the suspect himself and that, therefore, an
additional fact or facts particular to the suspect’s behavior was necessary to
support a finding of reasonable suspicion. Id. at 75.


                                           5
      This court, however, has previously addressed this apparent dichotomy.
Hernandez v. State, No. 11-08-00136-CR, 2009 WL 4931594 (Tex. App.—
Eastland Dec. 17, 2009, no pet.) (mem. op., not designated for publication). In
Hernandez, we criticized the Klare holding when we stated that the reasonable
suspicion analysis should not focus on each factor observed by the officer on an
isolated, piecemeal basis. Id. at *2–3. Rather, the analysis requires us to review
the totality of the circumstances to assess whether an officer is justified in making
an investigative stop. Id. In addition to the vehicle’s suspicious location and time
of day, we emphasized the fact that the vehicle in Hernandez drove away from its
parked position when the officer drove past it. Id. at *3; see also Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (recognizing that nervous, evasive behavior is
a pertinent factor in determining reasonable suspicion). In light of all of these
factors that gave rise to the officer’s suspicion, we affirmed the trial court’s denial
of the appellant’s motion to suppress. Hernandez, 2009 WL 4931594, at *3.
       Hernandez is controlling in this case. The facts that gave rise to Deputy
Hearn’s suspicion are nearly identical to those of the officer in Hernandez. Deputy
Hearn observed a vehicle parked with its lights out in close proximity to an area
that had been monitored by police due to previous criminal activity. The vehicle
was parked in the early hours of the morning—a time when any vehicular activity
was highly unusual.     Moreover, the vehicle was facing the anhydrous tank that
Deputy Hearn was monitoring, and the vehicle drove away from its parked position
when Deputy Hearn drove past it. Based on our review of the evidence, we
conclude that the totality of the circumstances gave rise to a reasonable suspicion
that criminal activity was afoot when Deputy Hearn decided to stop the vehicle that
Appellant was driving. Appellant has failed to persuade us to stray from our
previous holding in Hernandez. We acknowledge that the time of day and the
level of criminal activity in an area are not suspicious “in and of themselves.”
                                          6
Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010). However, here, there
were additional circumstances to raise Deputy Hearn’s suspicion that Appellant
was, had been, or soon would be engaging in criminal activity at the time of the
traffic stop. Thus, we conclude that Deputy Hearn had reasonable suspicion to
initiate the stop of the vehicle and to detain Appellant for investigative purposes.2
The trial court did not err when it denied Appellant’s motion to suppress.
Appellant’s sole issue is overruled.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                          JOHN M. BAILEY
                                                          JUSTICE


May 22, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




        2
        We have previously addressed the same issue of whether Deputy Hearn had the requisite
reasonable suspicion to initiate the stop of this vehicle as it related to the passenger in the vehicle that
Appellant was driving, and we reached the same conclusion. See Boyd v. State, Nos. 11-12-00251-CR &
11-12-00252-CR, 2013 WL 4428923, at *3-4 (Tex. App.—Eastland Aug. 15, 2013, pet. ref’d).
                                                     7
