in Re Daughters of Charity Health Services of Austin D/B/A Seton Medical Center

• Court: Court of Appeals of Texas
• Decided: June 13, 2007
• Docket: 03-06-00700-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

444444444444444444444444444 ON MOTION FOR REHEARING 444444444444444444444444444

NO. 03-05-00716-CR

Wendy Winborn, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NUMBER 2 OF HAYS COUNTY NO. 75862, HONORABLE LINDA ANN RODRIGUEZ, JUDGE PRESIDING

MEMORANDUM OPINION

Our opinion and judgment issued on October 12, 2006, are withdrawn, and the

following opinion is substituted.

This case concerns whether a phoned-in tip from an identified motorist was

sufficiently reliable to justify an investigative stop of appellant Wendy Winborn for driving while

intoxicated. The investigative stop resulted in Winborn’s arrest and ultimately, her conviction for

driving while intoxicated. We affirm the conviction.

On October 9, 2004, Corporal Kathy Anderson of the San Marcos Police Department

was on patrol in the San Marcos area when she received a call from dispatch notifying her of a

possible intoxicated driver.1 The call from dispatch was based on a phoned-in tip from Jerry

1 At the hearing on the motion to suppress, Corporal Anderson gave the following testimony:

[Prosecutor]: Okay. And it— it [Anderson’s report] says here that you were notified of a possible intoxicated driver.

[Anderson]: Yes. Hoffman, a truck driver who was driving south on I-35. The information relayed from dispatch to

Corporal Anderson was that Hoffman had been following a vehicle since Austin and that the driver

of the vehicle was failing to maintain a single lane. Hoffman reported the vehicle’s license plate

number and left his name, telephone number, and address with dispatch. After Anderson received

this call, she got on I-35 going south and, within a few minutes, identified Winborn’s vehicle as the

vehicle reported by Hoffman because “it was the same license plate.”

Corporal Anderson followed Winborn’s vehicle for approximately two miles without

activating the overhead lights on her patrol car. She testified that, other than observing Winborn’s

car “going back and forth within its lane of traffic,” she did not observe “any traffic infraction”

during this time. Once Corporal Anderson activated her overhead lights, Winborn’s vehicle “went

over into the left lane with two tires on the left side.” According to Anderson, Winborn then made

a lane change to the right lane using her blinker but “then again [Winborn] went over into the center

lane with two tires.” After driving approximately one mile further, Winborn stopped her vehicle and

was arrested by Corporal Anderson for driving while intoxicated.

Winborn was charged by information with driving while intoxicated. In a pretrial

motion to suppress, Winborn argued that the evidence supporting the DWI charge was discovered

during an improper investigative stop. After conducting a hearing on the motion, during which

Corporal Anderson testified, the trial court overruled the motion to suppress. At trial, Winborn

entered a plea of nolo contendere to the offense of driving while intoxicated, and the trial court

assessed punishment at 180 days in prison, probated for 18 months with conditions of community

supervision, and a $600 fine.

2 In one issue on appeal, Winborn contends that the trial court erred in overruling her

motion to suppress because Hoffman’s tip was not sufficiently reliable to provide Corporal Anderson

with reasonable suspicion to justify an investigative stop of her vehicle.

Questions of reasonable suspicion and probable cause are reviewed de novo. 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.). When hearing a motion to suppress, 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.

A police officer may stop and briefly detain a person for investigative purposes if the

officer, in light of his or her experience, has a reasonable suspicion supported by articulable facts that

criminal activity may be afoot. Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.—Austin 2000,

pet. ref’d) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). To justify the investigative detention, the

individual officer must have a reasonable suspicion that “some activity out of the ordinary is

occurring or had occurred, some suggestion to connect the detained person with the unusual activity,

and some indication that the activity is related to a crime.” State v. Fudge, 42 S.W.3d 226, 229

(Tex. App.—Austin 2001, no pet.) (quoting Terry, 392 U.S. at 21-22).

The reasonableness of an investigative detention turns on the totality of circumstances

in each case. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). When the police

receive information from an informant, the totality of the circumstances includes the veracity and

3 reliability of the informant and the informant’s information, as well as the basis for the informant’s

knowledge. See Illinois v. Gates, 462 U.S. 213, 230-31 (1983).

An anonymous tip alone will rarely establish the level of reasonable suspicion

required to justify a detention. Florida v. J.L., 529 U.S. 266, 270 (2000); Alabama v. White,

496 U.S. 325, 329 (1990). There must be some further indicia of reliability, some additional facts

from which a police officer may reasonably conclude that the tip is reliable and a detention is

justified. Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.—Fort Worth 2003, no pet.).

Several Texas courts of appeals have held that a tip from an informant exhibits

sufficient indicia of reliability to justify a detention when the informant has placed himself in a

position to be easily identified and held responsible for the information provided. See, e.g.,

Hawes v. State, 125 S.W.3d 535, 540 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (upholding

detention based on tow truck driver’s call to dispatch reporting erratic driving because tow truck

driver was in traceable vehicle and was following defendant); Fudge, 42 S.W.3d at 232 (upholding

detention based solely on cab driver’s unsolicited in-person 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.) (upholding investigative detention based on information from unidentified person relayed

to investigating officer by police dispatcher because informant 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 report personally given to officer even though informant drove away

before being identified).

4 The State contends that Hoffman’s unsolicited, phoned-in tip to the police was

sufficiently reliable to justify the investigative detention in this case because he left his name, phone

number, and address with dispatch. Winborn, on the other hand, argues that the tip was not

sufficiently reliable because it was given to the police over the phone rather than in a face-to-face, in-

person manner.

Several cases, including Fudge, Garcia, and Sailo, have held that an informant’s

unsolicited tip was reliable because the informant gave the information to the police in a “face-to-

face manner” that also revealed information about the informant, including identity. See Fudge,

42 S.W.3d at 232; Garcia, 25 S.W.3d at 913; Sailo, 910 S.W.2d at 188. In each of these cases, the

informant transmitted the information in-person. However, the in-person aspect of the delivery of

the tip is not the key to results in these cases. The central point is the credibility and reliability to

be given the information delivered by the informant. See Gates, 462 U.S. at 230-31 (1983). This

credibility and reliability can be enhanced when something about the informant is known, such as

the informant’s identity or basis for having the information conveyed. While such information can

be effectively conveyed in-person, such face-to-face contact is not the only method by which police

can receive credible and reliable tips.

An officer may rely upon information received through an informant, rather than on

his or her direct observation, so long as the officer confirms enough facts so that he or she may

reasonably conclude that the information provided is reliable and a detention is justified. See White,

496 U.S. at 330-31. This does not mean that the officer must personally observe the conduct that

causes him to reasonably suspect that a crime is being, has been, or is about to be committed.

Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim. App. 2005) (citing Adams v. Williams,

5 407 U.S. 143, 147 (1972)). Rather, it means that the police officer, in light of the circumstances,

confirms enough facts to reasonably conclude that the information given to him is reliable and a

temporary detention is thus justified. Brother, 166 S.W.3d at 259. As discussed above, Hoffman’s

tip contained indicia of reliability because he placed himself in a position to be easily identified and

held responsible for the information provided. Additionally, several minutes after dispatch contacted

Corporal Anderson relaying Hoffman’s tip, Anderson identified a vehicle in the same location and

with the same license plate number described by Hoffman. When Corporal Anderson confirmed that

Winborn’s vehicle was located where Hoffman indicated and matched the description given, she was

justified in initiating an investigative stop. See Hime v. State, 998 S.W.2d 893, 896

(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

The facts of this case are nearly identical to the facts presented in Hime. See id. In

that case, an informant called the police to report her observation of an individual’s reckless driving.

See id. at 895. The informant described the suspect’s vehicle, erratic driving, and location, and gave

her name to dispatch. Id. After the police identified the vehicle matching Skelton’s description in

the location described by Skelton, they stopped the vehicle and arrested the driver for driving while

intoxicated. Id. Although Skelton did not contact the police in a face-to-face manner, “[b]ecause

Skelton identified herself by name to the police dispatch operator, she was not an anonymous

informant.” Id. As a result, the court held that Skelton’s tip to the police, plus corroboration by the

police of the information relayed by Skelton, justified the investigatory stop. See id. at 896.

Winborn contends that her case is similar to Davis v. State, 989 S.W.2d 859, 861

(Tex. App.—Austin 1999, pet. ref’d), in which this Court held that an anonymous tip that served as

the sole basis for a detention was not sufficient to create reasonable suspicion. In that case, an

6 officer received a report of reckless driving from dispatch, including the vehicle’s description and

location, and a statement that three white males inside the vehicle were “possibly smoking

marijuana.” Id. 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.

We conclude that the facts of this case are distinguishable from the situation in Davis

and are, instead, more closely analogous to the facts presented in Hime. While the informant in

Davis did not volunteer identifying information and was never identified, the informant in this case

identified himself and put himself in a position to be held responsible for the information provided.

Corporal Anderson testified at the suppression hearing that Hoffman left his name and address with

dispatch “in case [the police] needed to make contact with him.” As a result, Hoffman was not an

anonymous informer as in Davis. See Hime, 998 S.W.2d at 895. His phoned-in tip contained indicia

of reliability similar to those bolstering reliability of a tip delivered by an informant who flags down

the police and delivers the information in person. These indicia of reliability, when combined with

Corporal Anderson’s observation of Winborn’s vehicle consistent with Hoffman’s description, and

viewed in the totality of the circumstances, provided sufficient reasonable suspicion to justify the

investigative stop of Winborn’s vehicle. See id. at 896.

Having overruled Winborn’s sole issue on appeal, we affirm.

__________________________________________ G. Alan Waldrop, Justice Before Justices Patterson, Puryear and Waldrop

Affirmed on Motion for Rehearing

Filed: June 13, 2007

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