                                                                                    ACCEPTED
                                                                                01-15-00512-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          10/30/2015 3:46:09 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

        No. 01-15-00512-CR
                  In the
                                                         FILED IN
          Court of Appeals                        1st COURT OF APPEALS
                 For the                              HOUSTON, TEXAS
       First District of Texas                    10/30/2015 3:46:09 PM
               At Houston                         CHRISTOPHER A. PRINE
                                                           Clerk
        
              No. 1980492
  In the County Criminal Court at Law #3
          Of Harris County, Texas

        

   TAYLOR MARTIN KORB
                Appellant
                  V.
    THE STATE OF TEXAS
                 Appellee

        

 STATE’S APPELLATE BRIEF
        


                                           DEVON ANDERSON
                                           District Attorney
                                           Harris County, Texas

                                           ALAN CURRY
                                           State Bar No: 05263700
                                           Assistant District Attorney
                                           Harris County, Texas

                                           JESSICA JUNEK
                                           Appellate Intern

                                           1201 Franklin, Suite 600
                                           Houston, Texas 77002
                                           Tel.: 713/755-5826
                                           FAX No.: 713/755-5809
                                           curry_alan@dao.hctx.net


ORAL ARGUMENT NOT REQUESTED
                 STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant requests

oral argument.


                      IDENTIFICATION OF THE PARTIES
      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson – District Attorney of Harris County

             Alan Curry – Assistant District Attorney on appeal

             Napoleon Stewart – Assistant District Attorney at trial

             Molly Wurzer – Assistant District Attorney at trial

      Appellant or Criminal Defendant:

             Taylor Martin Korb

      Counsel for Appellant:

             Dan Krieger – Counsel on appeal and at trial

             Christopher Morton – Counsel at trial

      Trial Judge:

             Honorable Natalie Fleming – Presiding judge of the CCCL#3




                                           ii
                                             TABLE OF CONTENTS



STATEMENT REGARDING ORAL ARGUMENT .................................................... ii

IDENTIFICATION OF THE PARTIES ......................................................................... ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF AUTHORITIES .............................................................................................. v

TO THE HONORABLE COURT OF APPEALS:......................................................... 1

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 3

REPLY TO APPELLANT’S FIRST POINT OF ERROR............................................. 3

    I.       The trial court was within her discretion to deny the appellant’s motion

    to suppress the traffic stop. ...............................................................................3

    a.       Standard of Review ...................................................................................3

    b.       There was reasonable suspicion to conduct a traffic stop of the

    appellant’s vehicle. ............................................................................................4

PRAYER ............................................................................................................................... 12

CERTIFICATE OF COMPLAINCE .............................................................................. 13


                                                                   iii
CERTIFICATE OF SERVICE ......................................................................................... 14




                                                        iv
                         TABLE OF AUTHORITIES
CASES
Crain v. State,
       315 S.W.3d 43 (Tex. Crim. App. 2010)……………………………….........9, 10

Derichsweiler v. State,
       348 S.W.3d 906 (Tex. Crim. App. 2011)…………………………………….3-6

Hime v. State,
      998 S.W.2d 893 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d.)……….5, 9

Johnson v. State,
       444 S.W.3d 209 (Tex. App.—Houston [14th Dist.], pet. ref’d). …………….3-7

Pipkin v. State,
       114 S.W.3d 649 (Tex. App.Fort Worth 2003, no pet.)………………....3, 4, 8

State v. Ballard,
        987 S.W.2d 889 (Tex. Crim. App. 1999)………………………………………4

RULES

TEX. R. APP. P 9.4(i)……………………………………………………………..…13


CONSTITUIONAL PROVISIONS

U.S. CONST. amend I.V.




                                      v
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE
       The appellant was charged by information with driving while intoxicated on

August 28, 2014. (1 CR at 6). The appellant filed a motion to suppress the traffic stop

on March 13, 2015. (1 CR at 23-24). A hearing on the motion to suppress took place

on April 28, 2015. (3 RR at 42). The trial judge denied the appellant’s motion to

suppress the traffic stop. (3 RR at 42). A jury trial followed, and the appellant was

found guilty of driving while intoxicated. (1 CR at 41-42). The appellant was

sentenced to 180 days in the county jail, probated for twelve months, and a $500 fine.

(1 CR at 41-42).


                             STATEMENT OF FACTS
       On August 28, 2014, at 12:04 AM, Officer Alberto Galvin received a

dispatched call from a resident located in the residential area between Orchard

Mountain Drive and Roaring Rapids. (3 RR at 7, 4 RR at 13). The resident reported

he witnessed a suspicious light-colored small truck circling the area. (3 RR at 6).

Specifically, the resident said the truck had circled three times in the last ten minutes.

(3 RR at 6). The caller gave his contact information, name, and location to Officer

Galvin. (3 RR at 12-13).




                                            1
      Officer Galvin, a nineteen-year veteran with the Pasadena Police Department,

had been stationed on patrol in that exact area since January 2014. (3 RR at 5, 4 RR at

12). This area was known to have a significant level of criminal activity, including

instances of burglaries, trespassing, criminal mischief, and accidents. (3 RR at 9, 4 RR

at 12, 42). Officer Galvin testified there had been reports of similar incidents

occurring in the area in August of 2014. (4 RR at 42-3).

      At approximately 12:05 AM, within a minute of the call, Officer Galvin

reported to the residential area. (3 RR at 8, 13). When he arrived at the intersection of

Orchard Mountain Drive and Roaring Rapids, he observed a tan-colored Chevrolet

pick-up proceeding to make a turn. (3 RR at 14). It was the only vehicle on the street

at the time, and it was within 100 yards from the location of the caller. (3 RR at 15, 4

RR at 14, 42). Therefore, Officer Galvin initiated an investigative stop to affirm or

dispel the report because this was suspicious activity and raised indications that the

driver could be “casing homes” and “possibly looking to burglarize”. (3 RR at 28, 4

RR at 43).

      Officer Galvin identified the appellant as the driver of the vehicle. (3 RR at 6,

44 RR at 14). During the stop, Officer Gavin observed the appellant with red-watery

eyes, and he reeked of alcohol. (4 RR at 15). The appellant was later charged with

driving while intoxicated. (1 CR at 6).



                                           2
                       SUMMARY OF THE ARGUMENT
       The trial court was within her discretion to deny the appellant’s motion to

suppress because there were specific and articulate facts that gave rise to support

reasonable suspicion. As a result, the traffic stop performed by Officer Galvin did not

violate the Fourth Amendment. And, therefore, this Court should affirm the trial

court’s ruling that there was reasonable suspicion to support the stop of the

appellant’s vehicle.


             REPLY TO APPELLANT’S FIRST POINT OF ERROR
       In his sole point of error, the appellant argues the trial court abused their

discretion in denying his motion to suppress because there were insufficient facts to

establish reasonable suspicion to conduct a stop.


        I.    The trial court was within their discretion to deny the appellant’s
              motion to suppress the traffic stop.

                 a. Standard of Review
       The Court should review the trial court’s ruling on an abuse of discretion.

Pipkin v. State, 114 S.W.3d 649, 652 (Tex. App.Fort Worth 2003, no pet.). When

reviewing a trial court’s decision on a motion to suppress, this Court should apply a

bifurcated standard of review, giving total deference to the trial court’s findings of

facts and review the court’s application of the law de novo. Derichsweiler v. State, 348

S.W.3d 906, 913 (Tex. Crim. App. 2011). The trial court is the sole trier of the

                                           3
credibility of the witness and the weight to be given their testimony. State v. Ballard,

987 S.W.2d 889, 891 (Tex. Crim. App. 1999). In reviewing the trial court’s decision an

appellate court views the evidence in the light most favorable to the trial court’s

ruling. Id. The reviewing court shall not disturb supported findings of fact absent an

abuse of discretion. Id. Therefore, the court should address the question of whether

the trial court properly applied the law to the facts. Id.


                 b. There was reasonable suspicion to conduct a traffic stop of
                    the appellant’s vehicle.
       The Fourth Amendment of the United States Constitution protects against

unreasonable searches and seizures. U.S. CONST. amend I.V. Under the Fourth

Amendment, a temporary detention of a person may be justified by mere reasonable

suspicion because there is a significantly lesser intrusion upon the privacy and integrity

of the person than a custodial arrest. Derichsweiler, 348 S.W.3d at 916. Reasonable

suspicion is met when there are “specific, articulable facts that, combined with

rational inferences from those facts, would lead [the officer] reasonably to conclude

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

at 914. This is an objective standard that looks to the totality of the circumstances.

Johnson v. State, 444 S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.], pet. ref’d).

Therefore, reasonable suspicion is dependent upon both the content of the

information possessed by the officer and its degree of reliability. Pipkin, 114 S.W.3d

at 654 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).
                                             4
       In the situation where a citizen-informant provides information regarding

suspicious conduct to officers, the information is presumed reliable when the citizen-

informant identifies himself to the officers and may be held accountable for the

accuracy and veracity of the report. Derichsweiler, 348 S.W.3d at 914-15. The only

question then 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.” Id. at 915. Here, the reliability of the caller is not at issue. See Id.; See also

Hime v. State, 998 S.W.2d 893, 895-96 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d.) (holding the reliability of the citizen’s report is inherent when the private citizen

identifies himself by name).

       The facts known to the investigating officer need not point to a particular and

identifiable criminal offense. Id. In other words, the requirement that there is some

indication that the unusual activity is related to a crime does not mean that a particular

criminal offense must be imminent. Johnson, 444 S.W.3d at 214. It is only necessary for

the information to be sufficiently detailed and reliable to suggest something of an

apparently criminal nature is brewing. Derichsweiler, 348 S.W.3d at 917. An officer may

have a “close call”, but as long as the information amounts to more than a mere

hunch, then there will be enough to satisfy the standard of reasonable suspicion.

Johnson, 444 S.W.3d at 214. Therefore, the facts must only show that “an unusual


                                             5
activity occurred, suggest a connection between the detainee and the unusual activity,

and provide some indication the unusual activity is related to a crime.” Id.

      The appellant contends that, when a citizen calls and reports innocuous

activity, that does not give rise to reasonable suspicion. However, precedent suggests

an investigative detention can be justified, even when the conduct of the detainee

appeared innocent in nature. See Derichsweiler, 348 S.W.3d at 917 (holding there was

reasonable suspicion when a citizen-informant reported a man driving around a

parking lot and staring into vehicles). Therefore, the question is not whether the

conduct is innocent or criminal; it is whether there is any suspicion that attaches to

the conduct. Id. In the present case, the suspicious activity was when the appellant was

noticed circling the neighborhood and, specifically, was observed circling at least three

times in ten minutes. While this seems innocent in nature, the fact that it was done

after midnight and in an area of high criminal activity, attaches the suspicion that the

appellant was “casing” houses in the neighborhood.

      The following case presents an instructive example of when a stop is justified

by reasonable suspicion. In Johnson, a resident of an apartment complex called 911 to

report suspicious activity of an individual watching people and cars in the parking lot.

Johnson, 444 S.W.3d at 211. The caller provided a physical description of the individual

and the person’s location near the leasing office of the complex. Id. Within thirty

minutes, an officer arrived at the complex where he had previously responded to

                                            6
robberies. Id. He noticed a running car with its lights turned on that was backed into a

parking spot in front of the leasing office. Id. He also was able to identify the man in

the front seat as matching the description provided by the caller. Id. Further, he

recognized from his experience that the man was parked in the same manner in which

a getaway car would be parked. Id. Therefore, he initiated a search and found

marijuana. Id.

       The court in Johnson ruled this search was justified by reasonable suspicion for

three reasons. Id. at 215. First, the evidence raised suspicions of unusual activity

because there was a reliable 911 call about the suspicious person watching people and

cars near the leasing office. Id. Second, there was a proven connection between the

reported unusual activity and the detainee because the man matched the description

and was in the same location provided by the informant. Id. And, finally, the unusual

activity was somehow related to a crime because the officer had knowledge and

experience of the past robberies and articulated the detainee’s vehicle was parked like

a typical getaway car. Id. The court held it did not matter that the reported conduct

appeared innocent in nature because when viewed objectively and in the aggregate

there was a realistic possibility of criminal motive. Id. at 214. Therefore, given the

totality of the circumstances, the officer was justified to conduct an investigative

detention. Id. at 215.




                                           7
       The present case is significantly analogous to the Johnson case and, therefore,

this Court should find there was reasonable suspicion to justify the stop of the

appellant’s vehicle. First, like the report by the caller in Johnson, this report was by a

reliable and identifiable citizen-informant. The citizen-informant gave a description of

the vehicle as a light-colored truck circling the residential area. This call was evidence

that established unusual activity taking place in the residential area, like the call in

Johnson. Further, our informant articulated a specific fact that the truck had circled the

neighborhood three times in the last ten minutes. The informant also provided a

location of where he saw the vehicle last circle the residential area. Therefore, the call

established that unusual and suspicious activity was taking place in the neighborhood.

      Second, there was a connection found between the appellant and the unusual

activity. When there is a reliable and identifiable citizen-informant, less corroboration

is needed by the officer. Pipkin, 114 S.W.3d at 651. In this case, Officer Galvin was

able to match the appellant’s vehicle to the description provided by the citizen-

informant. Further, this was corroborated because there were no other cars on the

street. Also, like the officer in Johnson, Officer Galvin first saw the vehicle at the

intersection near the location provided by the citizen-informant and noticed the

vehicle turning from Orchard Mountain Drive onto Roaring Rapids, possibly to make

another circle or having just finished completing a circle of the area for a fourth time.

Therefore, Officer Galvin was able to make an objective and rational conclusion that


                                            8
the appellant’s vehicle was the one associated with the unusual conduct relayed by the

citizen-informant.1

       Finally, the unusual activity reported by the citizen-informant was related to the

crime of burglary because there was the suspicion that the appellant could have been

canvassing houses. The informant reported that the appellant’s vehicle had circled the

residential area at least three times in the last ten minutes. This activity occurred

around midnight in a residential area. Further, like the officer in Johnson, Officer

Galvin testified that he was stationed on patrol in that exact area for a year, and the

area was known for burglaries. Therefore, the officer’s stop of the appellant’s vehicle

was based off a reasonable suspicion that the appellant soon would be engaged in

criminal activity.

       Further, the appellant’s reliance on Crain v. State is misplaced. In Crain, the

defendant was merely walking down a street at midnight in a residential area in which

burglaries occurred. Crain v. State, 315 S.W.3d 43, 46 (Tex. Crim. App. 2010). When

the officer passed the defendant in his squad car the defendant “grabb[ed] at his

waist”. Id. At that point, the officer initiated a stop on the defendant. Id. The officer

testified that he became suspicious merely because the appellant was walking in the

residential area late at night. Id. at 53. The court ruled time of day and level of criminal


1
  See Hime v. State, 998 S.W.2d 893, 895-96 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d.)
(holding the officer was justified in making the stop when he matched the description of the
appellant’s vehicle and location to that of the witness’s report).
                                              9
activity in an area are just factors to be considered when determining whether there

was reasonable suspicion. Id. The court held “in order for these facts to affect the

assessment of the suspect’s actions, the surroundings must raise a suspicion that the

particular person is engaged in illegal behavior.” Id.

       In the present case, the officer did not rely solely on the time of day and level

of criminal activity in the residential area. In fact, unlike the officer in Crain, Officer

Galvin received a report from the reliable citizen-informant, which articulated a

specific fact about the appellant and used this report as the main piece of information

to establish reasonable suspicion. The report was corroborated by Officer Galvin

when he saw the appellant’s vehicle – matching the description provided by the

citizen-informant – in the location of the call. The time of day and the criminal

activity just raised his suspicions, unlike the officer in Crain who solely relied on those

two factors to initiate the stop. Therefore, the officer followed the standard set out

under the Fourth Amendment and established reasonable suspicion prior to initiating

the stop of the appellant’s vehicle.

       Based on the totality of the circumstances, including Officer Galvin’s nineteen

years of experience, there was reasonable suspicion to initiate an investigative stop of

the appellant. First, Officer Galvin received a reliable call from an identifiable citizen-

informant. Second, the citizen-informant relayed that a light-colored pick-up truck

had circled the residential area three times in the last ten minutes. This was the

                                            10
specific and articulable fact that established unusual and possibly criminal activity

would soon occur because it was conduct that suggested the person was “casing”

houses to possibly burglarize. Third, Officer Galvin corroborated the report when he

saw the appellant’s vehicle – matching the description provided by the citizen-

informant – approximately 100 yards from the caller’s residence. And Officer Galvin

noticed the car turning back onto Roaring Rapids Drive, which further suggested the

appellant’s vehicle was connected to the caller’s report. And, finally, this all occurred

after midnight in a residential area that was known to Officer Gavin to have incidents

of burglaries. Therefore, this Court should find the traffic stop did not violate the

Fourth Amendment because reasonable suspicion was established.




                                           11
                                      PRAYER
      The State of Texas respectfully urges the Court to overrule appellant’s sole

point of error and affirm his conviction.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas

                                                  /s/ Alan Curry

                                                  ALAN CURRY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  TBC No. 05263700
                                                  curry_alan@dao.hctx.net




                                            12
                      CERTIFICATE OF COMPLAINCE
      The undersigned attorney certifies that this computer-generated document has

a word count of 2,945, based upon the representation provided by the word

processing program that was used to create the document. TEX. R. APP. P 9.4(i).



                                                    /s/ Alan Curry

                                                    ALAN CURRY
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    TBC No. 05263700
                                                    curry_alan@dao.hctx.net




                                         13
                         CERTIFICATE OF SERVICE
      The State will mail a copy of the foregoing instrument to appellant’s attorney at

the following address:

      Dan Krieger
      215 East Galveston Street
      League City, TX 77573

                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net




                                         14
