                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-12-00272-CR
                             ____________________

                    CURTIS ALLEN KIRKLAND, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee
_______________________________________________________               ______________

                      On Appeal from the 9th District Court
                          Montgomery County, Texas
                        Trial Cause No. 11-10-11344 CR
________________________________________________________                _____________

                                      OPINION

      A jury found Curtis Allen Kirkland guilty of possession of a controlled

substance with intent to deliver. Kirkland pleaded true to the enhancement

allegations. He was sentenced to seventy years in prison. In two issues, Kirkland

argues that the officers lacked reasonable suspicion to make a traffic stop, and that

the State failed to establish the reliability of a testing device, a window-tint meter.

      The trial court reasonably concluded that information provided to the

detaining officers from a narcotics investigation was sufficient to justify the

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investigatory stop. After the stop was made, further detention was reasonable

because of the results of the initial investigation. Evidence concerning the use of a

tint meter does not require a new trial. The judgment of the trial court is affirmed.

                                      THE STOP

      Officer Greg Green with the Houston Police Department testified he was

working with other narcotics officers in conducting surveillance. Approximately

eight to ten officers were on the investigation. Methamphetamine dealers were

selling drugs to smaller dealers at a Houston-area gas station. The officers were

“sitting on the main runner that delivers the dope.” Kirkland got out of a brown

Ford Explorer and into the passenger seat of a Ford Ranger that had pulled into the

same gas station. According to Officer Green, Kirkland was in the Ranger

approximately thirty seconds to one minute, the amount of time it typically takes to

complete a drug transaction. Kirkland got back into the Explorer, and the Ranger

left. Officer Green followed the Explorer. He testified that, because the

investigation was long-term, he wanted to allow the buyer, before being stopped, to

get away from the scene of the surveillance. Officer Green testified that “[t]he

transaction itself is enough probable cause but Montgomery County, they like to

get their own probable cause as well.” HPD narcotics division notified Deputy




                                          2
Brian Dunn that “there was a Ford Explorer coming his way and that we needed

him to get probable cause on the vehicle and get it stopped . . . .”

      Deputy Scott Martin testified he and his partner, Deputy Dunn, drove

towards Highway 59 and, about thirty to forty-five minutes after Dunn received the

call, they stopped a brown Explorer with the same license plate number provided

by the HPD narcotics division. Deputy Martin testified that, based on a belief that

the vehicle’s window tint violated Texas law, they stopped the vehicle. As Deputy

Martin approached the vehicle, Kirkland appeared to be extremely nervous and

under the influence. Kirkland’s demeanor and the appearance of his arms were

consistent with recent methamphetamine use. Martin questioned Kirkland while

Dunn interviewed the two passengers. The individuals’ stories were not consistent.

      One of the women, who appeared to be under the influence during the stop,

admitted to Martin that she had methamphetamines inside her pants and that

Kirkland told her to place the drugs there. The other woman testified at trial that

Kirkland told her he needed to go get more drugs because he had sold all his drugs

and needed more. According to her, Kirkland obtained the drugs that were

recovered during the stop from an individual in a truck at the Houston gas station.

      Dunn observed a bag of crystallized substance that appeared to be

methamphetamines in plain view on the vehicle’s floorboard. Dunn told Martin

                                           3
about the substance, and they took all three individuals into custody.

Methamphetamines weighing 13.57 grams and 27.78 grams were recovered during

the stop. Kirkland had $888 in his wallet that he said belonged to his mother.

Deputy Martin testified that, based on the amount of methamphetamines recovered

and the amount of money in Kirkland’s wallet, Martin believed the money had

been made through the sale of narcotics. When Deputy Martin tested the window

tint, he determined the tint was legal.

         While the deputies searched the vehicle, Kirkland was argumentative and

kept insisting, “That’s not my dope. That’s not my dope.” Once in custody and in

the police vehicle, Kirkland cursed, and told the women to claim the drugs.

Kirkland told the women he would provide for their bonds and pay their “lawyer

fees.”

                                REASONABLE SUSPICION

         In reviewing a trial court’s ruling on a motion to suppress, an appellate court

gives almost total deference to a trial court’s determination of historical facts, but

reviews de novo the trial court’s application of the law to those facts. Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955

S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). The trial court’s ruling will be

affirmed if it is reasonably supported by the record and is correct under any theory

                                            4
of law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim.

App. 2009). Whether reasonable suspicion existed here is a mixed question of law

and fact subject to de novo review. See Hamal v. State, 390 S.W.3d 302, 306 (Tex.

Crim. App. 2012).

      Kirkland argues that the window-tint assertion was a pretext to stop. Noting

that the window tint was determined to be legal, he argues that the basis for the

stop was objectively unreasonable. The State maintains Kirkland did not preserve

the alleged error for review on appeal. But the trial court ruled on the motion to

suppress, though late in the trial. The record reflects the trial court treated the

motion as timely. The record also reflects, however, that the trial judge did not

base his ruling on the window-tint evidence. He properly considered the

cumulative information known to the cooperating officers. See Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Hoag v. State, 728 S.W.2d

375, 380 (Tex. Crim. App. 1987).

      In Brother v. State, 166 S.W.3d 255, 257-60 (Tex. Crim. App. 2005), the

Court of Criminal Appeals considered whether an officer could make a traffic stop

based on information received from a witness who observed erratic driving. The

witness gave a detailed description of the car, its location, and the erratic driving.

As instructed by the dispatcher, the witness turned her hazard lights on and

                                          5
followed the suspect in order to assist the officers in identifying the vehicle. The

facts relayed by the dispatcher to the officer caused him to believe that the suspect

was driving while intoxicated. Id. at 257-58.

      The Court of Criminal Appeals rejected the argument that the detaining

officer must have personally witnessed facts giving rise to criminal activity. Id. at

257. The Court explained that, 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.” Id. In concluding that the stop was reasonable, the Court noted that it

would be “foolish and contrary to the balance of interests struck in Terry and its

progeny” to require an officer who is given detailed facts from “citizen-

eyewitnesses” to wait until the officer observes “additional suspicious acts[.]” Id.

at 259; compare Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)

(“Allowing a police officer’s opinion to suffice in specific facts’ stead eviscerates

Terry’s reasonable suspicion protection.”).

      Deputy Martin testified that an HPD investigator informed Dunn that the

vehicle “most likely would be headed up towards the 59 area” and could have

drugs in it. Nevertheless, Martin testified that he stopped the vehicle because he

                                         6
believed Kirkland was violating Texas law regarding window-tint restrictions. See

Tex. Transp. Code Ann. § 547.613 (West 2011) (Restrictions on Windows). The

fact that the officer ultimately determined the tint was legal does not automatically

render the stop unreasonable. See Johnson v. State, 237 S.W.3d 390, 394 (Tex.

App.—Waco 2007, pet. ref’d). Kirkland does not address the reason the trial court

gave for the ruling. Kirkland focuses on the motive or subjective intent of the

officer. The trial judge focused on the presence of reasonable suspicion for an

investigatory stop based on the narcotics investigator’s phone call to the detaining

officers.

      When the motion to suppress was presented to the trial judge at the

conclusion of the evidence, the court ruled as follows:

      [Trial Court]:         Forget the tinted window. You don’t think the
                             mere fact that at a known drug location, at a
                             known area with a known drug dealer, doing
                             exactly what they all do which they have seen a
                             hundred times or a thousand times that that
                             wouldn’t rise to a reason to detain the vehicle?
      [Defense Counsel]:     Nobody ever saw any drugs. It’s mere
                             suspicion. There’s no informant that came in
                             here and said, “I sold this guy drugs.”
      [State]:               There wasn’t an informant period.
      [Defense Counsel]:     Well, we’re in dispute of that.
      [Trial Court]:         I’m not sold on that. I think that police officers
                             who are trained in this area, you can --
                             Detective Wells is still here. I assure you he
                             would testify that, you know, he’s seen
                             numerous transactions exactly like that where
                                         7
                              drugs are sold in cars or passing by cars. We
                              know that occurs. And I think that to pull into a
                              known drug area, stop your car, get in, you
                              know, some transaction takes place and hops
                              out, that’s a pretty darn good way to believe
                              that a drug transaction happened. And I believe
                              that alone that’s suspicion to stop the vehicle.
      [Defense Counsel]:      Then they should have stopped the vehicle right
                              then.
      [Trial Court]:          They gave a reason for that is that this was an
                              ongoing investigation and they didn’t want to
                              turn their heads. Okay. That motion is denied.

      In determining whether reasonable suspicion was present at the time of the

investigatory stop, a trial court is required to disregard “the actual subjective intent

or motive of the detaining officer[.]” State v. Elias, 339 S.W.3d 667, 674 (Tex.

Crim. App. 2011). Instead, the trial court looks “to whether there was an objective

justification for the detention.” Id.; compare Garcia v. State, 43 S.W.3d 527, 530-

32 (Tex. Crim. App. 2001) (Although “the subjective intent of the officer

conducting the stop is irrelevant[,]” “there was insufficient evidence to establish

reasonable suspicion for the stop[.]”).

      The trial court in this case properly applied the standard for reasonable

suspicion objectively. The trial court could reasonably view this detention as an

investigatory stop. A court considers the totality of the circumstances in

determining the presence of reasonable suspicion. See Woods v. State, 956 S.W.2d

33, 38 (Tex. Crim. App. 1997) (There may be instances when conduct viewed in a
                                           8
vacuum appears purely innocent, yet when viewed in light of the totality of the

circumstances, gives rise to reasonable suspicion.).

      The standard for reasonable suspicion cannot be “‘reduced to a neat set of

legal rules.’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d

1 (1989) (quoting Illinois v. Gates, 426 U.S. 213, 232 (1983)). It is clear that the

observed conduct of the suspect need not by itself appear to have been unlawful

when “viewed in a vacuum.” Woods, 956 S.W.2d at 38. And an officer need not

have firsthand knowledge of the information that gives rise to reasonable suspicion

to conduct an investigatory stop. See Adams v. Williams, 407 U.S. 143, 147, 92

S.Ct. 1921, 32 L.Ed.2d 612 (1972); Brother, 166 S.W.3d at 257. A hunch is

insufficient. United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151

L.Ed.2d 740 (2002). The suspicion of criminal activity need not satisfy the

probable-cause standard, however, and what is required for reasonable suspicion

“falls considerably short” of what would be required by a preponderance-of-the-

evidence standard. Arvizu, 534 U.S. at 274.

      The cumulative information known to the cooperating officers at the time of

the stop is to be considered. See Derichsweiler, 348 S.W.3d at 914; Hoag, 728

S.W.2d at 380 (“Where there has been some cooperation between police officers,

the cumulative information known to the cooperating officers at the time of the

                                          9
stop is to be considered in determining whether reasonable suspicion exists.”). The

HPD investigator testified to the basis for his conclusion that Kirkland was in

possession of illegal drugs. He testified he believed he had probable cause. He

conveyed the information, and asked the officers in Montgomery County to make

the stop. He did not want to make the stop himself, apparently because of concern

that a stop in the area of the transaction would jeopardize the ongoing narcotics

investigation. The detaining officers determined that the brown Ford Explorer they

saw on Highway 59 had the same license plate number as the one identified by the

HPD narcotics investigator. See generally Brother, 166 S.W.3d at 258 (“Relying

on the information supplied by the citizen, the officer testified he was able to locate

and identify appellant’s vehicle.”). The trial court properly considered the totality

of the circumstances. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412,

110 L.Ed.2d 301 (1990). The trial court did not err in concluding that the officers

had reasonable suspicion to conduct an investigatory stop of the vehicle.

      After the initial investigatory stop, the investigation developed additional

reason for further detention. See Farmer v. State, 47 S.W.3d 187, 191 (Tex.

App.—Texarkana 2001, pet. ref’d). Kirkland’s appearance raised suspicion. One

passenger admitted that the drug purchase occurred. Drugs were observed in plain

view on the floorboard of the car.

                                          10
      We hold that the trial court did not err in concluding that the investigatory

stop was reasonable under the Fourth Amendment. Issue one is overruled.

                           THE WINDOW-TINT RESULTS

      In his second issue, Kirkland maintains that the trial court erred by admitting

window-tint-meter evidence. He asserts that although the trial court held a hearing,

“the State merely questioned the witness about his experience in the use of the

window tint meter” and did not establish the validity of the scientific theory

underlying the device and the technique applying the theory.

      The officers testified they stopped the vehicle based on a belief that the tint

on the vehicle violated Texas law. The trial court based its ruling denying the

motion to suppress on the narcotics investigation information. The tint-meter

testing indicated the tint was in fact legal. Considering the record as a whole, we

do not see how the admission of the complained-of evidence harmed Kirkland. See

Motilla v. State, 78 S.W.3d 352, 355-57 (Tex. Crim. App. 2002). The test results

did not support the officer’s stated belief. Regardless of whether the trial court

should have admitted the evidence, the ruling is not one that justifies a reversal of

the judgment. See Tex. R. App. P. 44.2. Issue two is overruled. The trial court’s

judgment is affirmed.




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      AFFIRMED.
                                         ________________________________
                                                 DAVID GAULTNEY
                                                       Justice

Submitted on March 14, 2013
Opinion Delivered April 10, 2013
Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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