                          NUMBER 13-12-00655-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


EUN CHAE,                                                                  Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


              On appeal from the County Criminal Court No. 2
                         of Denton County, Texas.


                          MEMORANDUM OPINION

           Before Justices Rodriguez, Benavides, and Longoria
               Memorandum Opinion by Justice Rodriguez
      Appellant Eun Chae challenges her conviction by a jury for driving while

intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2011). By three issues,

Chae argues that the trial court erred: (1) in admitting the audio recording of a 911 call

made by a witness; (2) overruling her motion to suppress the stop of her vehicle and
admission of evidence obtained as a result of the stop; and (3) refusing to submit a charge

to the jury under code of criminal procedure article 38.23 regarding the arresting officer's

reasonable suspicion to stop her vehicle. We affirm.

                                           I. Background1

       In the early morning hours of March 24, 2011, City of Carrollton, Texas 911

dispatchers received a call from a motorist claiming that he had observed an unsafe driver

on the road. Chae was stopped by Carrollton Police Officer Justin Cannon, the officer

sent by dispatch to investigate the 911 report.                 Officer Cannon administered field

sobriety tests on Chae and then arrested her. Chae was charged by complaint and

information with driving while intoxicated. See id. She pleaded not guilty, and her case

was tried to a jury.

       At trial, the State first presented the testimony of Thomas Michael Reed, the

motorist who made the 911 call reporting Chae's driving. Reed testified that while he

was driving home from work around 2 a.m. on March 24, 2011, he noticed that the car

ahead of him at a stop light did not move when the light turned green. Reed attempted to

pull around the car, but the car then began to move. Reed followed the car, and after

observing that it was straying out of its lane, he called 911 to report an unsafe driver. 2

Reed testified that he remained on the scene through the traffic stop. The State admitted

the audio recording of Reed's 911 call over objection by Chae's counsel, and the



       1
          This case is before the Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN.
§ 73.001 (West 2005).
       2
           Caleb Wilson, a passenger in Reed's car, testified to essentially the same facts as Reed.
                                                     2
recording was played for the jury.3

        Next, Officer Cannon testified. He stated that on the night in question he was

dispatched to investigate a report of an unsafe driver. Officer Cannon located the car

and began to follow it. While he was following the car, Officer Cannon observed it move

from the left to the right lane without using its signal, a traffic violation, after which Officer

Cannon activated his flashing emergency lights. Officer Cannon testified that it took the

car over a minute to come to a stop after he activated his lights. 4 As Officer Cannon

approached the car, the driver's door opened and a purse fell to the ground outside the

car. Officer Cannon identified Chae as the driver. He testified that she fumbled in her

purse for her driver's license and was unable to locate it. He testified that he also

detected a strong odor of alcohol coming from Chae and the car. Officer Cannon then

asked Chae to step out of the car. He asked her if she had consumed any alcohol that

evening, and Chae stated that she had had three beers. Officer Cannon administered

the standard field sobriety tests. When Chae failed those tests, Officer Cannon placed

her under arrest.5

        On cross-examination, Officer Cannon described the video of the incident taken by

the equipment in his patrol car.6 Officer Cannon testified that the video equipment is

continually running but not necessarily recording. An officer can initiate the recording by


        3
            The audio recording is not included in the appellate record.
        4
           At this point, counsel for Chae objected to Officer Cannon's testimony as being in violation of the
Fourth Amendment to the United States Constitution, Article I, Section 10 of the Texas Constitution, and
article 38.23 of the code of criminal procedure. The trial court granted a running objection on these bases.
        5
          Carrollton Police Officer Andrew Horn, who assisted in the unsafe driver investigation, testified to
essentially the same facts as Officer Cannon.
        6
            The video recording is not included in the appellate record.
                                                       3
turning on his flashing lights. When the recording is initiated this way, it includes the

thirty seconds of footage prior to the lights being activated. Officer Cannon testified that

the recording of Chae's traffic stop began when he first saw Chae's car driving toward

him. Officer Cannon testified that he turned around to follow Chae, and the video shows

Chae committing the traffic violation soon after he came up behind her. The testimony is

unclear regarding the exact point at which Officer Cannon turned on his flashing lights.

       After the close of evidence and argument by counsel, the jury found Chae guilty of

driving while intoxicated. The trial court sentenced Chae to 120 days in county jail, but

suspended the sentence and placed Chae on community supervision for a term of 20

months. This appeal followed.

                          II. Audio Recording of the 911 Call

       By her first issue, Chae argues that the trial court's admission of the audio

recording of Reed's 911 call violated the rules of evidence that prohibit the admission of a

prior consistent statement of a witness unless such statement is offered to rebut a charge

of recent fabrication or improper influence. See TEX. R. EVID. 613(c), 801(e)(1)(B).

       We review the admission of evidence under an abuse of discretion standard.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). We will uphold the

trial court's ruling on the admissibility of evidence if it is within the zone of reasonable

disagreement and correct under any theory of law applicable to the case. Id.

       The court of criminal appeals has held that 911 calls are generally admissible "at

the guilt phase to 'provide a framework within which the particulars of the State's evidence

could be developed' even though the evidence 'did not of itself establish any material fact


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not otherwise proven in the balance of the State's case.'" Estrada v. State, 313 S.W.3d

274, 300 (Tex. Crim. App. 2010) (quoting Webb v. State, 760 S.W.2d 263, 276 (Tex.

Crim. App. 1988)); see also Oviedo v. State, No. 02–11–00329–CR, 2012 WL 4010457,

at *2 (Tex. App.—Fort Worth Sept. 13, 2012, no pet.) (mem. op., not designated for

publication).     For this reason, we cannot conclude that the trial court abused its

discretion in admitting the audio recording of Reed's 911 call. See Winegarner, 235

S.W.3d at 790; see also Estrada, 313 S.W.3d at 300. Chae's first issue is overruled.

                           III. Reasonable Suspicion to Stop

       By her second issue, Chae argues that the trial court erred in denying her in-trial

motion to suppress testimony regarding the stop of her car and evidence obtained from

that stop.      Specifically, Chae contends that, based on Officer Cannon's testimony

regarding the video recording of the stop, it is clear that his decision to stop Chae

occurred before he observed any traffic violations and was therefore based entirely on

Reed's tip, an unnamed informant of unknown reliability. Chae argues that the foregoing

did not rise to the level of reasonable suspicion required to justify the stop of Chae's car.

       Whether the trial court properly denied a defendant's motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007). The trial judge is the sole trier of fact and judge of the

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

214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial

court's determination of historic facts and mixed questions of law and fact that rely upon

the credibility of a witness, but apply a de novo standard of review to pure questions of law


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and mixed questions that do not depend on credibility. Martinez v. State, 348 S.W.3d

919, 922–23 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is

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

the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).

              Under the Fourth Amendment, a warrantless detention of the person
      that amounts to less than a full-blown custodial arrest must be justified by a
      reasonable suspicion. A police officer has reasonable suspicion to detain
      if he has specific, articulable facts that, combined with rational inferences
      from those facts, would lead him reasonably to conclude that the person
      detained is, has been, or soon will be engaged in criminal activity. This
      standard is an objective one that disregards the actual subjective intent of
      the arresting officer and looks, instead, to whether there was an objectively
      justifiable basis for the detention. It also looks to the totality of the
      circumstances . . . . [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 reasonable suspicion
      exists." A 911 police dispatcher is ordinarily regarded as a "cooperating
      officer" for purposes of making this determination. Finally, information
      provided to police from a citizen-informant who identifies himself and may
      be held to account for the accuracy and veracity of his report may be
      regarded as reliable. In such a scenario, the only question is whether the
      information that the known citizen-informant provides, viewed through the
      prism of the detaining officer's particular level of knowledge and experience,
      objectively supports a reasonable suspicion to believe that criminal activity
      is afoot.

Derichsweiler v. State, 348 S.W.3d 906, 914–15 (Tex. Crim. App. 2011) (internal citations

and quotations omitted).

      Here, we disagree with Chae's contention that Officer Cannon formed his

reasonable suspicion, i.e., observed Chae's traffic violation, after he turned on his

flashing lights. It is unclear from the evidence before us exactly when Officer Cannon

turned on his lights during his tail of Chae, and considering Officer Cannon's testimony

during direct examination that his reason for stopping Chae was her commission of a

                                            6
traffic violation, we defer to the trial court's resolution of the timeline of events. See

Wiede, 214 S.W.3d at 24–25.         In other words, Chae's traffic violation gave Officer

Cannon the reasonable suspicion necessary to justify the stop of Chae's car.              See

Whren v. United States, 517 U.S. 806, 817 (1996) (holding that when an officer observes

a traffic violation, there are objective circumstances justifying the stop of the car).

       Even assuming that Officer Cannon observed the traffic violation after he turned

on his flashing lights, the information given to the 911 dispatcher by Reed was imputed to

Officer Cannon.     And contrary to Chae's assertion that Reed was an unnamed,

unreliable informant, the evidence in the record shows that Reed gave his name to the

dispatcher and remained on the scene through Chae's arrest, making Reed accountable

"for the accuracy and veracity of his report" and thus reliable. In short, even if Officer

Cannon's reasonable suspicion was based solely on Reed's report, that was enough to

give him specific, articulable facts from which he could conclude that Chae was

committing a crime.

       In light of the foregoing, the trial court did not err in denying Chae's motion to

suppress. Chae's second issue is overruled.

                                 IV. Article 38.23 Charge

       By her third issue, Chae argues that the trial court erred in denying her a jury

instruction regarding reasonable suspicion under code of criminal procedure article

38.23. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Chae argues that

the evidence raised a fact issue as to whether Officer Cannon had reasonable suspicion

to stop her car.


                                              7
       Article 38.23 provides that no illegally-obtained evidence may be admitted in a

criminal case and that, if the evidence raises the issue, the jury shall be instructed to

disregard the illegally-obtained evidence. Id.

       To be entitled to an Article 38.23 jury instruction, three predicates must be
       met: (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.

Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).

       Here, while there was arguably a fact issue over whether Officer Cannon observed

Chae's traffic violation before or after he turned on his flashing lights, Chae did not

affirmatively contest the 911 audio recording on the grounds that it related to the legality

of the stop. And having concluded that Reed's description of Chae's unsafe driving to

the 911 dispatcher was sufficient, alone, to create reasonable suspicion, Chae created no

fact issue as to the legality of the traffic stop. Thus, the trial court did not err in denying

Chae's request for an article 38.23 jury instruction. Chae's third issue is overruled.

                                      V. Conclusion

       We affirm the judgment of the trial court.


                                                                 NELDA V. RODRIGUEZ
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 5th
day of September, 2013.




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