Hawes v. State

• Decision Date: 28 February 2002
• Docket Number: No. 01-00-00601-CR.,01-00-00601-CR.
• Citation: Hawes v. State, 125 S.W.3d 535 (Tex. App. 2002)
• Court: Texas Court of Appeals
• Parties: Stephen Calhoun HAWES, Appellant, v. The STATE of Texas, Appellee.

125 S.W.3d 535

Stephen Calhoun HAWES, Appellant, v. The STATE of Texas, Appellee.

No. 01-00-00601-CR.

Court of Appeals of Texas, Houston (1st Dist.).

February 28, 2002.

Rehearing Overruled April 15, 2002.

W. Troy McKinney, Houston, for Appellant.

Kelly Ann Smith, Asst. Dist. Atty., John B. Holmes, Dist. Atty., Houston, for State.

Panel consists of Chief Justice SCHNEIDER and Justices WILSON and JENNINGS.

OPINION

MICHAEL H. SCHNEIDER, Chief Justice.

A jury found appellant guilty of misdemeanor driving while intoxicated. The court sentenced him to 180 days in county jail, probated for 18 months. During the trial, the court denied appellant's motion to suppress evidence. Additionally, appellant's objection to the admission of a post-arrest statement was denied. He now appeals. We affirm.

Background

On August 14, 1999, Kenneth Clevenger was driving a tow truck on Nasa Road 1 in Harris County when, according to his testimony, a vehicle driven by appellant approached from behind, almost hit his truck, and then temporarily entered a grassy median after passing him. Mr. Clevenger radioed his tow truck dispatcher, who then contacted the City of Webster Police Department. The tow truck dispatcher relayed questions and answers between the police and Mr. Clevenger. A police dispatcher then contacted Officer Kevin Cargile and gave him information regarding the reported reckless driver. Specifically, Officer Cargile received a license plate number, a description of the vehicle, the vehicle's location, and its direction of travel. He was also told that the information had come from a wrecker driver who was still following the vehicle.

Officer Cargile located the vehicles on the road. He did not personally witness any traffic violations, but pulled appellant over based on the information he had received from the police dispatcher. Mr. Clevenger did not stop, but continued on his way after seeing that appellant had been pulled over. Later, at the request of the police, Mr. Clevenger gave a written statement describing the incident.

The officer noticed the smell of alcohol on appellant's breath and that his speech was slurred. Officer Cargile asked appellant if he had been drinking, and he answered that he had drunk three or four beers. A series of field sobriety tests were administered, and, in the officer's view, appellant failed several. The vehicle contained opened and unopened containers of beer and three passengers who appeared to be intoxicated.

After appellant was arrested, he was taken to a police station and was videotaped performing another series of physical and mental sobriety tests administered by Sergeant Jeffrey Tate. Appellant again failed several tests. At the conclusion of the tests, appellant was given an opportunity to make any statement he wished on videotape. He stated he was under a doctor's care for a neurological condition, and the medication he was taking made alcohol affect him more. Sergeant Tate testified that, when the taping was over, appellant stated he was taking a prescription anti-depressant drug called Elavil. Also, appellant refused to give a breath sample.

Reasonable Suspicion

In his first four points of error, appellant claims the trial court erred by denying his motion to suppress evidence, which challenged the legality of the initial traffic stop. He claims that the officer did not possess the reasonable suspicion necessary to justify the stop and thereby violated his rights under the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution.

Questions of reasonable suspicion and probable cause are reviewed de novo on appeal. See Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997); State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.-Houston [14th Dist.] 2000, no pet.). During a motion to suppress hearing, the trial court is the sole trier of fact, and, accordingly, the judge may choose to believe or disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). When, as here, no findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of law. Id. at 855-56.

It is well settled that a police officer may stop and briefly detain persons suspected of criminal activity, but the officer must possess a reasonable suspicion to justify this investigative detention. See Davis v. State, 947 S.W.2d 240, 242-44 (Tex.Crim.App.1997) (discussing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Texas case law). The totality of the circumstances must be examined when determining the reasonableness of an investigative stop. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997); Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd); Garcia, 25 S.W.3d at 912. In determining whether reasonable suspicion existed, we look to the facts available to the officer at the moment of detention. See Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 243; Garcia, 25 S.W.3d at 912.

An anonymous tip alone will rarely establish the level of suspicion required to justify a detention. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, (2000); Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990). However, there are situations in which an anonymous tip exhibits sufficient indicia of reliability to justify the detention. J.L., 529 U.S. at 270, 120 S.Ct. at 1378. Several Texas courts of appeals have upheld investigative stops based solely on unsolicited reports from private citizens. See State v. Fudge, 42 S.W.3d 226, 232 (Tex.App.-Austin 2001, no pet.) (upholding detention based solely on cab driver's unsolicited personal report to officer about erratic driving); Garcia, 25 S.W.3d at 913-14 (holding that reasonable suspicion existed after individual "flagged down" officer in parking lot and personally reported incident, even though informant later left scene without identifying himself); State v. Stolte, 991 S.W.2d 336, 342-43 (Tex.App.-Fort Worth 1999, no pet.) (holding that traffic stop was justified based on tip from informant who witnessed erratic driving, called police on cellular phone, followed vehicle, and waited at scene when stop was made); State v. Sailo, 910 S.W.2d 184, 189 (Tex.App.-Fort Worth 1995, pet. ref'd) (upholding stop based on a report personally given to officer even though informant drove away before being identified).

Several of these courts have held that the reliability of a tip can be heightened to the point where an officer is justified in making a detention when an informant places himself in a position to be easily identified and held responsible for the information provided. See Fudge, 42 S.W.3d at 232 (noting that "primary indicia of reliability" in case was fact that informant put himself in position to be held accountable for his intervention); Garcia, 25 S.W.3d at 913 ("Unlike a person who makes an anonymous telephone call, an individual presenting himself to the officer in person, and doing so while driving a vehicle from which his identity might easily be traced, puts himself in a position to be held accountable for his intervention; thus, the reliability of the information he provides is increased.") (citing Sailo, 910 S.W.2d at 188); Stolte, 991 S.W.2d at 341-42 (holding that "the fact the person put himself in a position to be held accountable for his intervention" makes tip more reliable). A firsthand account and detailed descriptions of wrongdoing likewise increase reliability. See Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983); Sailo, 910 S.W.2d at 189; Stolte, 991 S.W.2d at 342. The State argues that the unsolicited report in the present case likewise justified the investigative stop.

In contrast, appellant relies heavily on two cases from the Austin Court of Appeals, Davis v. State and Stewart v. State, where unsolicited citizen reports were held inadequate to create reasonable suspicion. Davis v. State, 989 S.W.2d 859 (Tex.App.-Austin 1999, pet. ref'd); Stewart v. State, 22 S.W.3d 646 (Tex.App.-Austin 2000, pet. ref'd). However, these cases are distinguishable from the instant case.

Davis held that an anonymous phone tip that served as the sole basis for a detention was not sufficient to create reasonable suspicion. Davis, 989 S.W.2d at 865. There, the officer received a description of the vehicle, a dealer tag number, the recent location of the vehicle, its direction of travel, a description of "three white males" in the vehicle, a description of a reckless driving maneuver that had previously occurred, and the informant's statement that the occupants were "possibly smoking marijuana." Id. at 861. The informant did not leave a name or address with the dispatcher, and no one stopped at the scene claiming to be the informant. Id.

In Stewart, the Austin court again held that an investigative detention was not justified by reasonable suspicion. Stewart, 22 S.W.3d at 650. Again, a telephone tip was the sole basis for the stop. The officer was told that the driver of a green Camaro parked at a convenience store had fallen down while trying to enter the vehicle and appeared highly intoxicated. Id. at 648. The officer arrived on the scene as a car matching the informant's description was pulling away. After following the car briefly, the officer stopped the car although he had observed no traffic violations. The caller was never identified. Id.

In both Davis and Stewart, the informant was not identified and was essentially unidentifiable. Here, although Officer Cargile was not given the name or address of the informant, he did know that the informant was a tow truck driver who was following the appellant. He then observed a tow truck following a vehicle that matched the description he had been given. This made Mr. Clevenger much...