      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00485-CR



                                Leeroy Milligan, Jr., Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
       NO. 14,123, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After the trial court denied his motion to suppress evidence, appellant Leeroy

Milligan, Jr. pleaded guilty to a charge of possession of more than one but less than four grams

of crack cocaine. The trial court found that appellant was a habitual offender and assessed sentence

at twenty-five years in prison. Appellant contends that the trial court abused its discretion by

denying his motion to suppress evidence because the police lacked reasonable suspicion to justify

an investigatory detention and by denying his motion to suppress statements that were the product

of a custodial interrogation conducted without Miranda warnings. See Miranda v. Arizona, 384 U.S.

436, 444 (1966). We will affirm the judgment.


                                        BACKGROUND

               Elgin Police Department dispatcher Athena King testified that on the afternoon

of February 4, 2011, she received a report from Travis County that a caller on a cell phone in

Travis County had requested that an armed officer come to 105 Masonic Drive in Elgin. She notified
an officer, then received a follow-up call from a man identified as David Lashon requesting police

response to that address. Lashon said, “[M]y wife’s home by herself and she’s scared . . . . Three

armed men are at 105 Masonic.” Lashon said that his wife had reported that the men had pulled up

in front of her house in a big, dark car— possibly a Cadillac—and were looking at the house. King

advised Elgin police officers that she was on the line with a caller whose wife was home alone,

and that there were three armed men outside the house. Lashon told King that he and his wife had

argued, that she kicked him out of the house, that she was nervous because “now the people are

coming over to her house all the time sitting there eyeballing my wife and I’m not even there.”

Lashon also mentioned that there might be a warrant out for his arrest. King did not pass the warrant

information along to the officers, nor did she share Lashon’s report that his wife had kicked him out

of the house or his report that the men had not gotten out of the vehicle. She said that, for officer

preparation and safety, she informed the officers that the men were thought to be armed. She said

she assumed that, because she was expressly passing along information from an off-site caller, the

responding officers would understand that the information was not eyewitness information.

               Elgin police sergeant Frank Delgado and William Silva responded to the dispatch.

Delgado testified that he saw a large car matching the description passed along by King parked

near the property line of 105 Masonic. He did not attempt to corroborate the dispatch information

by checking with neighbors because he did not consider that to be sound tactics under the

circumstances. He activated his vehicle’s video camera and then went to investigate. He drew

his handgun, holding it behind his back as he approached the car. He testified that the car’s tinted

windows prevented him from seeing into the car easily. Delgado said that, because the caller

had reported that the men were armed, he was concerned that they meant harm to others, and

he wanted to prevent that. Delgado said he saw the driver open the car door, see him, then

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close the door. Delgado feared that the driver was retrieving a weapon, preparing to drive away, or

destroying evidence of wrongdoing. Delgado was concerned for his own safety. Sergeant Silva was

approaching the passenger side of the car. Meanwhile, a neighbor, whom Delgado knew because

he had previously transported her to mental health facilities, was yelling that the driver was her son.

Delgado ordered the occupants to get out of the car, and they complied. He handcuffed the men and

conducted a patdown search for weapons. While he searched appellant, a small opaque plastic box

fell out of appellant’s pants. Appellant stepped on the box and tried to push it into the mud, but

Delgado retrieved it. Delgado recognized the box, ostensibly containing a bicycle repair kit, as

a vessel often used to carry crack cocaine. He shook the box and heard a sound like small mints

rattling. He opened the box and saw a substance that resembled crack cocaine. Subsequent testing

and weighing revealed that the box contained at least one gram and less than four grams of crack

cocaine. Police found no weapons on the men or in the car. Appellant was put into Silva’s police

car, where Delgado asked appellant if he wanted to talk about whether the drugs were his and

whether the other men were involved.

               Before trial, appellant moved to suppress the evidence obtained through the

warrantless search of his person and his conversation with police that occurred before he was read

the Miranda warning. The trial court overruled his motion, finding the following:


       The defendant’s statements were voluntary.

       The defendant’s statements were recorded.

       The defendant was in custody at the time of the statements.

       The defendant’s statements resulted from interrogation.




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       The defendant’s statements are admissible under Section 5 of Article 38.22 of the
       Texas Code of Criminal Procedure if the statements have a bearing on the credibility
       of the accused as a witness.


Appellant then pleaded guilty without a punishment recommendation, and the trial court stated that

he could file this appeal.


                                  STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its

discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005). A trial court’s ruling on a motion to suppress will be affirmed if it is

reasonably supported by the record and is correct under any theory of law applicable to the case.

Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

               In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to

the trial court’s determination of historical facts, we conduct a de novo review of the court’s

application of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327.

We give almost total deference to the trial judge’s rulings on mixed questions of law and fact

when the resolution of those questions depends on an evaluation of credibility and demeanor. State

v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). We review de novo mixed questions of law and fact that do not depend on

an evaluation of credibility and demeanor. Johnston, 336 S.W.3d at 657; Guzman, 955 S.W.2d



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at 89. All purely legal questions are reviewed de novo. Johnston, 336 S.W.3d at 657; Kothe v. State,

152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).

               At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge

of the credibility of the witnesses and the weight to be given their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. Unless the trial court

abuses its discretion by making a finding unsupported by the record, we defer to the court’s findings

of fact and will not disturb them on appeal. Johnston, 336 S.W.3d at 657; Guzman, 955 S.W.2d

at 89; Miller v. State, 335 S.W.3d 847, 854 (Tex. App.—Austin 2011, no pet.).


                                           DISCUSSION

               Appellant contends that the trial court abused its discretion by overruling his motion

to suppress, arguing that the police lacked reasonable suspicion to justify an investigatory detention,

and by denying his motion to suppress statements that were the product of a custodial interrogation

conducted without Miranda warnings.


The investigatory detention was justified.

               When reviewing the trial court’s determination of what is reasonable suspicion, we

examine the totality of the circumstances and the information available to police. Derichsweiler

v. State, 348 S.W.3d 906, 915 (Tex. Crim. App. 2011). “[I]nformation provided to police from an

identifiable citizen-informant, who may be held to account for the accuracy and veracity of the

report, may be regarded as reliable.” LeCourias v. State, 341 S.W.3d 483, 488 (Tex. App.—Houston

[14th Dist.] 2011, no pet.). “[T]he detaining officer need not be personally aware of every fact

that objectively supports a reasonable suspicion to detain; rather, the cumulative information known

to the cooperating officers at the time of the stop is to be considered in determining whether

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reasonable suspicion exists.” Derichsweiler, 348 S.W.3d at 914 (footnotes and citations omitted).

A police dispatcher is ordinarily regarded as a “cooperating officer” for purposes of making this

determination. Id. We consider all information provided by a caller to a dispatcher regardless of

whether the dispatcher passed the information along to the responding officer. Id. The relevant

inquiry is not necessarily whether conduct is innocent or criminal, but the degree of reasonable

suspicion that attaches to particular noncriminal acts. Woods v. State, 956 S.W.2d 33, 38

(Tex. Crim. App. 1997); see United States v. Sokolow, 490 U.S. 1, 10 (1989). Reasonable suspicion

may be validly based on articulable facts that are ultimately shown to be inaccurate or false.

Williams v. State, 621 S.W.2d 613, 615 (Tex. Crim. App. 1981); Kelly v. State, 721 S.W.2d 586, 587

(Tex. App.—Houston [1st Dist.] 1986, no pet.).

                The trial court did not abuse its discretion by determining that the totality of the

information provided by Lashon, who identified himself as a resident of the house and asserted that

he was coming home, provided a sufficient basis for reasonable suspicion of wrongdoing that

supported appellant’s detention. The report that the men possessed guns is not alone evidence of a

crime, but could in some circumstances raise a concern about impending wrongdoing. The assertion

that the allegedly armed men were parked in front of the residence and “eyeballing” the house added

an air of menace, and Lashon’s repetition that men were watching the house despite the fact that

Lashon was not “even there” adds a flavor that perhaps armed men were looking for him for illegal

purposes—an impression lent further weight by Lashon’s admission of possible warrant for his

arrest. (This latter fact is relevant to the determination even though the dispatcher did not pass it

along to Delgado because it adds to the collective knowledge of the police force. See Derichsweiler,

348 S.W.3d at 914.) The fact that Lashon’s wife called him and yelled at him because of this

situation, rather than calling police herself, adds yet another indication of potential illegal conduct.

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The driver’s recoil and retreat into the car at the sight of Delgado reinforced the impression

of impending illegal action. Although each of these circumstances taken in isolation might not be

sufficient, the trial court did not abuse its discretion by concluding that the totality of the

circumstances amounted to provide reasonable suspicion that justified the investigatory detention

of appellant and his companions.


The court did not abuse its discretion by declining to suppress appellant’s statements entirely.

                Our review of appellant’s second issue is somewhat limited by the procedural posture

of the case. He sought to suppress statements he made to Delgado without having been informed

of his Miranda rights. The trial court overruled his motion to suppress, but did not admit the

statements into evidence or rule that they were fully admissible for all purposes. The trial court

expressly held that the statements were admissible “if the statements have a bearing on the credibility

of the accused as a witness.” Appellant pleaded guilty and did not testify, so the trial court was never

required to admit or exclude the statements.

                Before questioning a person in custody, law enforcement officials must warn the

person that he has a right to remain silent, that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an attorney, either retained or appointed.

Miranda, 384 U.S. at 444. Violation of this rule, however, does not prevent the State from using a

defendant’s voluntary, unwarned statements for impeachment purposes on cross-examination.

Oregon v. Elstad, 470 U.S. 298, 307 (1985); Harris v. New York, 401 U.S. 222, 223-26 (1971).

                There is no dispute that appellant was not free to leave and had not been read his

rights when Delgado asked if he wanted to talk. There is no allegation that appellant’s statements

were coerced.


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               The State asserted in its trial-court brief that, “[a]fter being arrested for possession

of a controlled substance, the defendant made several statements in regard to a neutral question by

Sergeant Delgado. The State does not intend to offer these statements in the case in chief. The State

requests the court find that the statements made by the defendant were voluntary and would be

admissible under Article 38.22 Section 5 of the Texas Code of Criminal Procedure should the

defendant testify.” This limited proposed use squares with the holdings of Elstad and Harris. See

Elstad, 470 U.S. at 307; Harris, 401 U.S. at 223-26.

               The trial court’s express finding that the statements were admissible if they had

a bearing on appellant’s credibility is consistent with both the holdings in Elstad and Harris and

the State’s proposed limited use of the statements. We cannot say that the trial court abused its

discretion in concluding that the statements might be admissible for that limited purpose and in

overruling the motion to suppress on that basis.


                                         CONCLUSION

               We affirm the judgment of the trial court.




                                               Jeff Rose, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: July 18, 2014

Do Not Publish




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