                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00065-CR

CHARLES JAMES SNYDER                                                 APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE


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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
                   TRIAL COURT NO. 1295355

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      In two issues, Appellant Charles James Snyder appeals the denial of his

motion to suppress and the sufficiency of the evidence to support his conviction

for failure to identify, arguing that there was no lawful detention. We reverse the

trial court’s judgment and render a judgment of acquittal.




      1
       See Tex. R. App. P. 47.4.
                                 II. Suppression

      In his first issue, Snyder argues that the trial court erred by denying his

motion to suppress because the State failed to establish that there was a lawful

detention when Forest Hill Police Sergeant Curt Leach asked him to identify

himself.

A. Standard of Review

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

bifurcated standard of review.    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).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

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

probable cause if an officer reasonably suspects a person of criminal activity

based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.

1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.

2000). An officer conducts a lawful temporary detention when he or she has

reasonable suspicion to believe that an individual is violating the law. Crain v.

State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488,

                                         2
492 (Tex. Crim. App. 2005). 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, lead him to conclude that a

particular person is, has been, or soon will be engaged in criminal activity. Ford,

158 S.W.3d at 492. That is, an officer must have reasonable suspicion that

some activity out of the ordinary is occurring or has occurred, have some

suggestion to connect the detained person with the unusual activity, and have

some indication that the activity is related to a crime. Hoag v. State, 728 S.W.2d

375, 380 (Tex. Crim. App. 1987). 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. Ford, 158 S.W.3d at 492.

B. Suppression Hearing

      At the suppression hearing, Sergeant Leach testified that on August 27,

2012, he was on his daily patrol in a high-crime area at around 4:15 p.m. when

he saw a bike tire in some bushes. He drove past the area and saw someone

hiding in the bushes in a fetal position on the ground; he made eye contact with

that person and thought that the person might be trying to hide from him. By the

time Sergeant Leach turned his vehicle around, he could not find the person he

had seen in the bushes. Sergeant Leach stopped a man on a bicycle and then

let that man go after his name checked out clear. Sergeant Leach then drove

back past the bushes—three additional police officers in squad cars joined him—

and found Snyder.

                                         3
        At gunpoint, Sergeant Leach asked Snyder why he had been hiding.

When Snyder responded that he had not been hiding, Sergeant Leach

responded by stating, “[W]hat games are you F-ing playing out here.” Snyder

told him that he was not playing games. Sergeant Leach then asked him what

he was doing out there, and Snyder replied, “I don’t know.” Sergeant Leach

asked Snyder if he was drunk or a pervert, and Snyder said, “Neither.”

        After Sergeant Leach told Snyder several times to show him his hands, he

warned Snyder that they would tase him. Sergeant Yancy told Snyder that if he

tried to escape, they would shoot him in the side. When Sergeant Leach pulled

Snyder from the bushes, he detained him in handcuffs because he thought

Snyder’s location and actions were suspicious. Sergeant Leach said that he did

not find any weapons or anything illegal on Snyder when he conducted a pat-

down.

        Sergeant Leach asked Snyder for his name, and Snyder replied, “Jim

James Morgan.” Sergeant Leach asked Snyder for his date of birth, and Snyder

said, “January 7th, 1957.” Snyder gave the officer the same name, same date of

birth, and same social security number each time he asked. When Sergeant

Leach asked Snyder if he had a driver’s license or state identification, Snyder

told him that he had a Michigan identification. Sergeant Leach said that if this

had been true, he would have been able to find him in the computer system, but

when he checked for driver’s licenses under Jim Morgan in Michigan, he did not

get any returns.

                                        4
      Sergeant Leach then asked Snyder if he had ever been arrested and if he

had identification in any other states.       Snyder said Ohio, but when Sergeant

Leach tried to find Jim Morgan in the computer with an Ohio identification, he did

not find anyone. Sergeant Leach said at that point, he suspected Snyder was

being dishonest and that he was giving false identifying information. Based on

this, he decided to take Snyder to the Tarrant County Jail to further attempt to

identify him.2   Sergeant Leach acknowledged on cross-examination that just

because nothing comes back when a name is run through the system, this does

not mean that a person is lying. The trial court watched State’s Exhibit 1, the

dashboard camera video-recording of the incident.3

      At the conclusion of the suppression hearing, Snyder argued that Sergeant

Leach lacked reasonable suspicion to detain him and that the detention then

elevated to the level of an arrest without probable cause. The trial court stated

that as to reasonable suspicion, it was a close call but that given the facts—“the

bicycle standing in a bunch of bushes in a high-crime area” and Sergeant


      2
       Using the Tarrant County jail’s iris scan, Snyder was identified in less than
a minute with his real name and real date of birth, which were not the ones he
had given to Sergeant Leach. The proper identification revealed that Snyder had
an active warrant for his arrest on a probation violation.
      3
        The dashboard camera video shows that when Sergeant Leach arrived at
the scene, two patrol cars were already parked on the street a few feet from
where they detained Snyder. Once Sergeant Leach arrived, one officer pulled
his vehicle closer, and a few seconds later another officer arrived, totaling four
patrol cars. The officers yelled at Snyder to show his hands, threatened to tase
him, and then threatened to shoot him in the side if he ran.

                                          5
Leach’s letting the other bicycle rider go after identifying him—it would deny the

motion. The trial court concluded that Sergeant Leach had probable cause to

arrest once Snyder gave him a fake name.

C. Analysis

      Snyder argues that Officer Leach did not have reasonable suspicion that

Snyder had committed any crime and that therefore there was no lawful

detention. Snyder asserts that the only information known to Sergeant Leach

before he took Snyder to the police station was that Snyder was on the side of

the road under a bush and that he told officers his name was Jim James Morgan.

      Snyder cites St. George v. State for the proposition that misidentification

together with nervousness is not sufficient to raise reasonable suspicion to

support a detention.    237 S.W.3d 720, 726 (Tex. Crim. App. 2007).           In St.

George, the defendant was a passenger in a car that officers stopped for a traffic

violation. Id. at 722. The defendant initially gave a false name and date of birth,

which the officers were unable to locate in their system. Id. After officers issued

the traffic citation to the driver, they continued to question the defendant about

his identity. Id. They eventually obtained the defendant’s correct name and

discovered he had outstanding warrants.           Id.   The officers arrested the

defendant, and in a search incident to arrest, they found marijuana on his person.

Id.

      The officers in St. George did not learn that the defendant had

misidentified himself until after they had issued the citation to the driver; at that

                                         6
point, the lawful detention of the driver and the passenger had ended. Id. at 726.

Had the officers developed reasonable suspicion that the defendant was

engaged in criminal activity during the stop, the continued detention and

investigation would have been reasonable. Id. at 722. However, nervousness

alone is not enough to amount to reasonable suspicion, and “giving a false name

when officers did not know it was false could not give them reasonable suspicion

to investigate further, nor was the fact that the dispatcher found no record of the

first name given by [the defendant] sufficient to raise suspicion of criminal

activity.” Id. at 726; see also Carmouche, 10 S.W.3d at 328 (stating that the

same standard applies to pedestrians or vehicle occupants).

      The State argues that concealment in a high-crime area is sufficient to

establish reasonable suspicion       and     relies on federal    cases that are

distinguishable on the facts of this case.4 In the first case, United States v. Sims,

officers reported to a shots-fired call. 296 F.3d 284, 285 (4th Cir. 2002). When

they arrived at the scene, they had the suspect’s description, the defendant was

the only person there and matched the suspect’s description, and the defendant

was located not far from where the shots had been fired a few minutes before the


      4
       The State equates flight with concealment, but while flight and hiding may
both indicate consciousness of guilt, see, e.g., Jordan v. State, Nos. 02-12-
00470-CR, 02-12-00471-CR, 02-12-00472-CR, 2014 WL 1663404, at *4 (Tex.
App.—Fort Worth Apr. 24, 2014, no pet.) (mem. op., not designated for
publication), Sergeant Leach’s subjective opinion that Snyder was trying to hide
is not dispositive. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.
2001).

                                         7
call.   Id. at 287.    The court stated that an officer could have reasonably

concluded that the defendant was evading the officers, stating that the

“[defendant’s] behavior, while apparently evasive, was well short of ‘headlong

flight’ and might not have given rise to reasonable suspicion in a different

context.” Id. (emphasis added). In contrast, Sergeant Leach was not responding

to any calls and did not have a description of a suspect because he was not

looking for a suspect, and there were people other than Snyder in the area.

        In the second federal case, United States v. Peterson, plain-clothes

officers were patrolling a high-crime area when they saw three men standing on

the sidewalk. 100 F.3d 7, 9 (2d Cir. 1996). The men ducked behind a car when

they saw the officers.      Id.   This made the officers suspicious, and they

approached the men. Id. at 10. The court concluded that this was a consensual

encounter because two of the men left without hindrance; because the initial

encounter was consensual, the court did not determine whether the fact that the

men had ducked behind a car, by itself, was sufficient to support reasonable

suspicion.   Id. at 9–11.    In contrast, Sergeant Leach immediately detained

Snyder during their initial contact by pulling his weapon and ordering Snyder out

of the bushes.        Cf. St. George, 237 S.W.3d at 726 (stating that absent

reasonable suspicion, officers may conduct only consensual questioning).




                                        8
      Here, Snyder’s false identity was suspected but not known to the police

until after they had already detained him and taken him to jail. 5 See id. Sergeant

Leach saw Snyder at 4:30 p.m. in a high-crime area where no crime had been

reported, and the basis for the stop by Sergeant Leach and three other police

officers was that Sergeant Leach thought Snyder was hiding from him.              See

Domingo v. State, 82 S.W.3d 617, 618 (Tex. App.—Amarillo 2002, no pet.)

(holding no reasonable suspicion existed to support detention when defendant’s

conversation with officer occurred at 9:00 p.m. in high-crime area, defendant was

part of a group that was lawfully socializing and drinking alcohol without engaging

in disruptive or illegal activities, and the officer was not responding to or

investigating reports of criminal activity);6 Scott v. State, 549 S.W.2d 170, 172–73


      5
         Sergeant Leach drew Snyder from the bushes at gunpoint and used
profanity as he questioned him, while another officer threatened to shoot Snyder
if he tried to escape. These acts indicate an arrest without probable cause rather
than a mere detention. See Campbell v. State, 325 S.W.3d 223, 234 (Tex.
App.—Fort Worth 2010, no pet.) (listing factors involved in determining whether a
seizure is an arrest or a detention, including degree of force and the
reasonableness of the intrusion); see also Terry, 392 U.S. at 19–20; 88 S. Ct. at
1878–79 (requiring an officer’s actions to be justified at their inception and to be
reasonably related in scope to the circumstances that justified the interference in
the first place).
      6
        In Domingo, after the police officer detected a strong odor of alcohol on
the defendant’s breath, he detained him for further investigation. 82 S.W.3d at
619. Once detained, the defendant gave a false name and date of birth to the
officer. Id. When the officer was unable to locate the defendant in the system,
he suspected that he had been given a false name and took the defendant to the
police station for further identification. Id. At the police station, he confirmed that
the defendant had given him a false name and that the defendant had
outstanding warrants. Id.

                                          9
(Tex. Crim. App. 1976) (holding that no reasonable suspicion existed when

officer patrolling a high crime area was aware of recent thefts and saw defendant

drive a sparsely traveled street at 1:30 a.m. with “sheeting material” in his car’s

back seat). Compare Jones v. State, 926 S.W.2d 386, 389 (Tex. App.—Fort

Worth 1996, pet. ref’d) (holding no reasonable suspicion existed when officers

saw defendant’s truck emerge at 10:25 p.m. from public park that had previously

been used by people to smoke marijuana, have sex, abandon stolen vehicles,

and conceal minors drinking alcohol and that was located across from some

recently burglarized homes), with Balentine v. State, 71 S.W.3d 763, 766–69

(Tex. Crim. App. 2002) (concluding that officer reporting to a shots-fired call had

reasonable suspicion to detain defendant when it was 2:26 a.m. in a residential,

low-traffic area, and the officer saw the defendant across the street from the

scene before defendant walked briskly away and appeared nervous, constantly

looking over his shoulder at the officer). Other than Snyder’s location in the

bushes in a high-crime area, no other facts support an inference that criminal

activity had or would be occurring. See Crain, 315 S.W.3d at 53 (holding that

“level of criminal activity in an area . . . [is not] suspicious in and of [itself]”); see

also Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (stating that

the high-crime reputation of the area where the detainees were seen is not

enough by itself to support an investigative stop); cf. Williams v. State, No. 01-93-

00874, 1994 WL 400292, at *2 (Tex. App.—Houston [1st Dist.] Aug. 4, 1994, pet.

ref’d, untimely filed) (not designated for publication) (holding that officer had

                                           10
reasonable suspicion to detain appellant when driver of stolen car had fled scene

of accident, bystanders pointed out the direction in which he had fled, and officer

found appellant hiding under some bushes).

      Based on our review of the case law and the totality of the circumstances,

we conclude that the specific, articulable facts here present an insufficient basis

for reasonable suspicion, and we sustain Snyder’s first issue. See St. George,

237 S.W.3d at 726; see also Domingo, 82 S.W.3d at 618.7

                                 III. Sufficiency

      In his second issue, Snyder argues that the evidence is insufficient to

support the jury’s verdict because the State failed to prove that there had been a

lawful detention. In our due-process review of the sufficiency of the evidence to

support a conviction, we view all of the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d

763, 768 (Tex. Crim. App. 2013).


      7
       As in Domingo, before he was taken to jail for identification, Snyder had
provided the same name, date of birth, and social security number each time
Sergeant Leach asked him for his identification. See 82 S.W.3d at 619.
Sergeant Leach testified that he thought Snyder was being dishonest about who
he was and took him to jail for identification because he could not locate “Jim
James Morgan” in the system, Jim and James were similar names, and Jim is a
nickname for James.



                                        11
      A person commits the offense of failure to identify if he intentionally gives a

false or fictitious name, residence address, or date of birth to a peace officer who

has lawfully arrested or detained him. Tex. Penal Code Ann. § 38.02(b)(1), (2)

(West 2011). Based on our resolution above, there was no reasonable suspicion

to detain Snyder. Therefore, his detention was unlawful, making the evidence

insufficient to support the jury’s verdict. We sustain Snyder’s second issue.

                                 IV. Conclusion

      Having sustained both of Snyder’s issues, we reverse the trial court’s

judgment and enter a judgment of acquittal. See Tex. R. App. P. 43.2(c).



                                                    /s/ Bob McCoy

                                                    BOB MCCOY
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 2, 2014




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