                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00433-CR


JEFFREY W. MORRIS                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                  I. Introduction

      In a single issue, Appellant Jeffrey W. Morris appeals his conviction for

misdemeanor driving while intoxicated (DWI). We affirm.

                      II. Factual and Procedural History

      Morris was charged with misdemeanor DWI. Prior to trial, he filed a motion

to suppress all physical evidence obtained by the Arlington Police Department as

      1
      See Tex. R. App. P. 47.4.
the fruit of an illegal search and seizure in violation of his federal and state

constitutional rights and code of criminal procedure article 38.23.           After a

hearing,2 the trial court denied Morris‘s motion.

       Timothy Beavers testified that he called 911 in the early morning of June

13, 2009, to report a truck traveling in a dangerous and erratic manner at a high

rate of speed on Interstate 30. He provided an Arlington Police Dispatcher with

his contact information, a description of his vehicle, a description of the truck, the

truck‘s license plate number, and the truck‘s approximate location on I-30.

Beavers followed the truck and relayed its actions to the dispatcher—speeding,

almost rear-ending another vehicle, almost hitting a retaining wall, and fish-tailing

through a turn. After the truck stopped at a residence, Beavers parked on a

street near the front of the house and provided the dispatcher with the address

and a description of the driver who had pulled into the driveway, exited the truck,

and remained outside of the house. Beavers stated that he waited until the

police arrived and that ―as the officer was driving up into the driveway, [a person

later identified as Morris] walked out to meet the officer. He walked out from

behind the vehicle and they met.‖ [Emphasis added.] At the end of Beavers‘s

testimony, a recording of the 911 call was admitted into evidence and played for

the jury.




       2
       The record does not contain a transcript of the pretrial hearing.


                                          2
      Responding Arlington Police Officer Neil Landfield, dispatched to the

residence on a ―DWI complainant following‖ call, testified that he did not speak to

Beavers but saw Beavers point in the direction of the residence.            Officer

Landfield observed a truck matching the suspect vehicle‘s description in the

driveway and a man standing outside of the house and, with his overhead lights

flashing, pulled his police vehicle into the driveway, blocking the truck from

exiting. He also said that after he exited his patrol car he either approached

Morris or requested that Morris approach him and asked Morris, who appeared

confused, had slurred speech, and smelled of alcohol, if he had been driving.

Morris, who had keys in his hand, admitted that he had been driving, that he had

been at a bar in Fort Worth, and that he probably should not have driven home.

      Morris objected to Officer Landfield‘s testimony, argued that Officer

Landfield‘s actions violated his federal and state constitutional rights against

unreasonable searches and seizures, and reurged his motion to suppress all

physical evidence obtained by the Arlington police department. The trial court

granted Morris a running objection and carried Morris‘s motion along at trial.

      Officer Landfield stated that because Morris became irate during their

conversation, he told Morris to sit cross-legged on the curb. Officer Landfield

repeated this during cross-examination:

            [Morris‘s Attorney:]      And you did have a conversation with
                                      Mr. Morris?

            [Officer Landfield:]      Yes.



                                          3
             [Morris‘s Attorney:]      And some -- at some point during
                                       that conversation you asked him to
                                       sit down Indian style with hands on
                                       his knees in his driveway?

             [Officer Landfield:]      Absolutely.

      Arlington Police Officer Hyder testified that he arrived nineteen minutes

after Officer Landfield; that Morris was being detained at the time he arrived; and

that because Morris smelled of alcohol, had slurred speech, and glassy and

watery or blood-shot eyes, he conducted field sobriety tests, determined that

Morris was intoxicated, and arrested him.

      At the end of the first day of trial, the trial court held a hearing on Morris‘s

reurged motion to suppress. Morris testified that Officer Landfield ordered him to

sit down with his legs crossed before he asked any questions, that he was

confused because he did not know what was going on with the vehicle at the end

of his driveway, and that he did not feel free to leave at that point. On cross-

examination, Morris said ―[t]hat‘s absolutely what happened, yes[]‖ when asked

―[a]nd did [the police] encounter you and merely start asking you questions?‖

Morris also stated that the police did not tell him that he was detained until after

he had answered their initial questions. The trial court again carried Morris‘s

motion along at trial.

      After both parties rested, the trial court heard additional arguments on

Morris‘s motion and concluded that Morris consented to speak with Officer

Landfield, determined that the encounter was voluntary, and denied Morris‘s



                                          4
motion to suppress.3 Morris then argued that a factual issue existed as to the

legality of the evidence obtained and requested a jury instruction pursuant to

code of criminal procedure article 38.23. The trial court denied Morris‘s request.

A jury found Morris guilty, and the trial court assessed punishment of 120 days‘

confinement and a $2,000 fine. This appeal followed.

                          III. Article 38.23 Instruction

      In his sole issue, Morris complains that ―[b]ecause there was a material

disputed fact concerning how the evidence to establish ‗reasonable suspicion‘ . .

. was obtained, the trial court erred by denying Morris‘s request for a 38.23 jury

instruction.‖ Morris cites three reasons to support his complaint: (1) there is a

material disputed fact because the jury heard contradicting testimony by Officer

Landfield concerning his initial encounter with Morris, (2) Officer Landfield‘s

testimony affirmatively contested evidence of their encounter, and (3) whether

the evidence suggested that Officer Landfield intimidated Morris into answering

his questions or if Morris consented to speak with Officer Landfield is a material

factual dispute because Officer Landfield‘s reasonable suspicion arose during the

parties‘ conversation.

A. Standard of Review

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); see also Sakil

      3
      The trial court documented these findings in its written findings of fact and
conclusions of law.


                                        5
v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).           Initially, we must

determine whether error occurred.       If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at

731–32.

B. Applicable Law

      Article 38.23(a) states:

      (a) No evidence obtained by an officer or other person in violation of
      any provisions of the Constitution or laws of the State of Texas, or of
      the Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.

      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2009).

      Article 38.23 requires a jury instruction only if there is a genuine dispute

about a fact that is material to the admissibility of the challenged evidence. See

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden v.

State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); Pierce v. State, 32

S.W.3d 247, 251 (Tex. Crim. App. 2000).        A defendant must establish three

foundation requirements to trigger an article 38.23 instruction: (1) the evidence

heard by the jury must raise an issue of fact; (2) the evidence on that fact must

be affirmatively contested; and (3) the contested factual issue must be material to

the lawfulness of the challenged conduct in obtaining the evidence claimed to


                                         6
have been seized illegally. See Oursbourn, 259 S.W.3d at 177; Madden, 242

S.W.3d at 510. The defendant must offer evidence that, if credited, would create

a reasonable doubt as to a specific factual matter essential to the admissibility of

the challenged evidence. See Oursbourn, 259 S.W.3d at 177; Madden, 242

S.W.3d at 510; 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal

Practice and Procedure § 4.194 (2d ed. 2001). ―And if other facts, not in dispute,

are sufficient to support the lawfulness of the challenged conduct, then the

disputed fact issue is not submitted to the jury because it is not material to the

ultimate admissibility of the evidence.‖ Madden, 242 S.W.3d at 510 (emphasis

added).

C. Analysis

      The jury heard Beavers‘s uncontroverted testimony that Morris approached

Officer Landfield‘s patrol unit as it pulled into Morris‘s driveway.     Beavers‘s

testimony supports the trial court‘s ruling that the parties‘ encounter was

consensual. Thus, we conclude that because an undisputed fact supports the

lawfulness of the encounter, no disputed fact issue material to the legal question

of ―reasonable suspicion‖ to detain Morris existed, and the trial court properly

denied Morris‘s requested jury instruction. See Madden, 242 S.W.3d at 513; see

also State v. Woodard, No. PD-0828-10, 2011 WL 1261320, at *4 (Tex. Crim.

App. Apr. 6, 2011) (noting that the defendant has initial burden to show that he

was seized without a warrant and that a ―stop‖ to make an inquiry, on its own,

does not show a seizure and holding consensual an encounter between an


                                         7
officer investigating a single-car accident who stopped and questioned a person

walking on a sidewalk approximately one quarter of a mile from the accident

scene who was wearing clothing matching the ―vague description of the driver‘s

clothing‖ provided by an anonymous tipster); State v. Garcia-Cantu, 253 S.W.3d

236, 243 (Tex. Crim. App. 2008) (recognizing that police officers are free to

approach a residence to ask to speak with an individual and that such conduct

does not constitute a seizure until the officer engages in coercive, offensive, or

threatening conduct); cf. State v. Garcia, 859 S.W.2d 125, 127 (Tex. App.—Fort

Worth 1993, pet. ref‘d) (noting that a person standing in the front yard of a

residence does not have a reasonable expectation of privacy).

      However, even assuming arguendo that the parties‘ encounter was not

consensual, Officer Landfield had reasonable suspicion to undertake an

investigative detention. Under the Fourth Amendment, a temporary detention is

justified when the detaining officer has specific articulable facts which, taken

together with rational inferences from those facts, lead the officer to conclude

that the person detained is, has been, or soon will be engaged in criminal activity.

Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968).

      The factual basis supporting reasonable suspicion need not arise from the

officer‘s personal observation, but may be supplied by information acquired from

another person. See Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921,

1924 (1972).    It has been widely recognized that the reliability of a citizen-

informant is generally shown by the nature of the circumstances under which the


                                         8
incriminating information became known to him or her. Brother v. State, 166

S.W.3d 255, 258 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1150 (2006).

      The trial court issued the following relevant written findings of fact and

conclusions of law: that at approximately 2:50 a.m. on June 13, 2009, Beavers

called 911, identified himself, reported an erratic and unsafe driver on I-30,

described the suspect vehicle as a white pickup, and provided the vehicle‘s

license plate number; that Beavers followed the driver to a residence, relayed the

residence‘s address to the 911 dispatcher, informed the 911 dispatcher that a

white male had exited the suspect vehicle and had remained outside the

residence; that Beavers waited at the residence for the police to arrive; that

Beavers was still on the phone with the 911 dispatcher when Officer Landfield

arrived on scene; that Officer Landfield observed Beavers pointing in the

direction of the white male; that Officer Landfield observed a white male standing

in the yard of the residence and a white truck matching the suspect vehicle‘s

description in the residence‘s driveway; that Arlington police dispatchers provide

information derived from incoming calls via a computerized system referred to as

―call texts‖ or ―call sheets‖; that the white male in the yard matched the

description that Officer Landfield received in his call text; that the call text Officer

Landfield received contained Beavers‘s name, cell phone number, vehicle




                                           9
description, and location; that Officer Landfield made contact with the white male

in the yard; and that the white male in the yard was later identified as Morris.4

      At trial, Officer Landfield testified that as he approached Morris, he

observed that Morris appeared confused, had slurred speech, smelled of alcohol,

and had keys in his hand. Even prior to Officer Landfield asking Morris a single

question, viewing the totality of the circumstances, Officer Landfield‘s

observations combined with the information provided by Beavers via the 911

dispatch call text provided Officer Landfield with reasonable suspicion to detain

Morris long enough to determine if a crime was afoot. See Brother, 166 S.W.3d

at 259–60 (finding reasonable suspicion for investigative detention based on

information supplied by citizen-informant); Pipkin v. State, 114 S.W.3d 649, 654–

55 (Tex. App.—Fort Worth 2003, no pet.) (holding that report of erratic driving

relayed to a dispatcher, combined with suspect vehicle‘s description and location

and citizen-informant‘s identifying information, provided adequate corroboration

for the officer to have reasonably concluded that the information was reliable and

justified a temporary detention); State v. Stolte, 991 S.W.2d 336, 342–43 (Tex.

App.—Fort Worth 1999, no pet.) (holding that information from citizen-informant

who was unidentified prior to the detention, but who provided specific details

about suspect vehicle and an ongoing account of suspect vehicle‘s actions to a


      4
       Because these findings are supported by the record, we defer to them in
our review. See State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App.
2008).


                                         10
police dispatcher, rendered the information sufficiently reliable to justify an

investigative stop).

      We overrule Morris‘s sole issue.

                                 IV. Conclusion

      Having overruled Morris‘s sole issue, we affirm the trial court‘s judgment.



                                                   BOB MCCOY
                                                   JUSTICE

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

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

DELIVERED: May 5, 2011




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