Gansky v. State

• Decision Date: 13 October 2005
• Docket Number: No. 2-04-159-CR.,2-04-159-CR.
• Citation: Gansky v. State, 180 S.W.3d 240 (Tex. 2005)
• Parties: Eric Eugene GANSKY, Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

180 S.W.3d 240

Eric Eugene GANSKY, Appellant, v. The STATE of Texas, State.

No. 2-04-159-CR.

Court of Appeals of Texas, Fort Worth.

October 13, 2005.

David L. Richards, Fort Worth, for appellant.

Red M. Barker, Asst. County Atty., Weatherford, for state.

PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

Appellant Eric Eugene Gansky appeals from his DWI conviction claiming the trial court erroneously denied his motion to suppress. We affirm.

Factual Background

In the early morning hours of November 10, 2002, Parker County Sheriff's Deputy Stella Perkins was on patrol, stopped in the I-20 median facing west. She was monitoring traffic with radar and her CB radio when she heard truck drivers asking for police assistance, saying there was a white car traveling on the wrong side of the interstate. She had previously noticed a white car driving west in the westbound lane because it was driving relatively slow and because there had been little other traffic at that time. The truck drivers said the white car was driving east in the westbound lane at the 404 mile-marker and were asking for a police officer. While Deputy Perkins was trying to communicate with the truck drivers about the white car, a semi-truck pulled over onto the shoulder and the driver got out and started waving at her, pointing back towards the east. Deputy Perkins believed the truck driver was signaling to her regarding the white car. Without stopping, she proceeded eastbound trying to follow the car as truck drivers continued giving her the car's location by mile-marker. One of the truck drivers told her the white car almost hit a semi-truck at the 405 mile-marker as it continued eastbound in the westbound lane, and the truck driver who was almost hit stated so over the CB radio.

Truck drivers continued to monitor the vehicle as it passed the 406 mile-marker and then told Deputy Perkins that it crossed the median near the 407 mile-marker back into the eastbound lane of traffic and then exited at the 407 exit. Once Deputy Perkins heard this she also exited at the 407 exit and continued on the eastbound access road where the truck drivers said the white car was. Then, the truck drivers said the car had pulled into the Burger King-Texaco station at the corner of South Main and the access road. As she pulled into the parking lot, one of the truck drivers told her that the white car was driving through the gas pumps and going across the parking lot. At this point, Deputy Perkins saw the only white car in the parking lot, driving through the pumps, and initiated a traffic stop. Deputy Perkins arrested appellant for DWI. After the trial court denied appellant's motion to suppress, he entered a negotiated plea of guilty and the trial court assessed punishment at 180 days' confinement, probated for twenty-four months, with a $600 fine.

Issue Presented

In one issue appellant challenges the trial court's ruling denying his motion to suppress based upon the illegality of the officer's stop. Appellant contends that the officer had insufficient corroboration of the anonymous tip to justify the Terry stop of his vehicle.

Standard of Review

The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend. IV. For an arrest to be justified under the Fourth Amendment, it must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). A detention, however, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche, 10 S.W.3d at 327; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). 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. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 67 (Tex.App.-Fort Worth 2004, pet. ref'd); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. However, when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

When the trial court does not file findings of fact, we are to view the evidence in the "light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Ross, 32 S.W.3d at 855; Guzman, 955 S.W.2d at 89; State v. Maldonado, 176 S.W.3d 419, 421 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

While the trial court filed no written findings of fact or conclusions of law in connection with the suppression hearing, the trial judge concluded that there were "several corroborations" of the tips. Because it is clear from the trial court's statements on the record, and because the record supports the trial court's conclusions, we must give the trial court almost total deference in reviewing those historical facts but review de novo the application of the law to those facts. See Ross, 32 S.W.3d at 856-57.

Discussion

In this case, the arresting officer, Deputy Perkins, was the only person to testify at the suppression hearing. The only fact that might have been in issue was whether the vehicle appellant was driving had actually been in an accident. Appellant contends that because the white car Deputy Perkins stopped had no damage, it could not have been the vehicle the truck drivers were describing as driving the wrong way or striking a semi-truck; thus, Deputy Perkins would not have had a reasonable suspicion to stop appellant's white car. However, a closer look at Deputy Perkins's testimony shows some equivocation as to whether the truck drivers reported that the suspect vehicle had actually struck a "semi."

Deputy Perkins testified that she heard a report that the vehicle had "almost hit or they thought he had actually hit a semi at the 406 mile-marker." Appellant cross-examined Deputy Perkins extensively regarding this issue in an effort to cast doubt on whether she had, in fact, stopped the correct vehicle since appellant's car had no damage. But, as the testimony shows, there was no definitive testimony that the white car actually struck a semi, only that it almost had. Because this is the only potential fact issue that might have been determined by the trial court, we apply the bifurcated standard to the trial court's findings and rulings. See id. at 856.

We must conclude that the trial court implicitly found that the white car described by all the truck drivers was not actually in a collision and that it had only narrowly missed a semi because appellant's white car had no damage. Further, in reviewing Deputy Perkins's testimony on direct examination, it is apparent that one of the truck drivers specifically identified the white car while it actually drove around in the Burger King-Texaco parking lot at the same time Deputy Perkins arrived at the parking lot. This particular testimony gives further credence to the trial court's apparent conclusion that the white car only "almost" struck another semi. Applying great deference to the trial court's implicit findings, we turn to a review of the trial court's application of law to these facts. Id. at 857-58.

Applicable Law Regarding Investigative Detentions

Appellant cites two cases, Alabama v. White and State v. Simmang, to support his contention that Deputy Perkins had insufficient corroboration to justify her investigative stop and detention because Deputy Perkins was relying solely on anonymous tips. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990); State v. Simmang, 945 S.W.2d 219, 223 (Tex.App.-San Antonio 1997, no pet.). Conversely, we believe this case is distinguishable from Simmang, but agree it is controlled by the principles announced in White, as well as other more recent Texas cases discussing anonymous tips and reasonable suspicion. See White, 496 U.S. at 329, 110 S.Ct. at 2415; Brother v. State, 166 S.W.3d 255 (Tex.Crim.App.2005); Ross, 32 S.W.3d at 853; Pipkin v. State, 114 S.W.3d 649 (Tex.App.-Fort Worth 2003, no pet.); State v. Stolte, 991 S.W.2d 336 (Tex.App.-Fort Worth, 1999, no pet.); Glover v. State, 870 S.W.2d 198 (Tex.App.-Fort Worth 1994, pet. ref'd).

In Alabama v. White, the United State Supreme Court was asked to review the Alabama Court of Criminal Appeals's reversal of a trial court's ruling denying a defendant's motion to suppress evidence seized during a stop of the defendant's vehicle. 496 U.S. at 328, 110 S.Ct. at 2415. The Supreme Court reversed the Alabama court's determination holding that the officer who received a detailed anonymous tip on the location of a particular vehicle and occupant had reasonable suspicion to stop, detain, and investigate. Police had received a tip that the respondent, White, would be leaving a particular apartment at a particular time in a certain vehicle, that she would be going to a...