in Re: Larry Dale Smith

• Court: Court of Appeals of Texas
• Decided: May 5, 2004
• Docket: 06-04-00055-CV
• Status: Published

Opinion

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00055-CV

IN RE:

LARRY DALE SMITH

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Larry Dale Smith, relator, has filed a petition for writ of mandamus asking us to overturn a default judgment entered by the 307th Judicial District Court that determined paternity and assessed child support against him. Smith is presently incarcerated and complains he had no opportunity to defend himself in this proceeding. He has enclosed a copy of a judgment signed November 5, 2003, and a copy of a notice of appeal dated December 4, 2003.

          Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

          Under the facts presented by this case as set out by the relator, there is an adequate remedy by appeal. See Tex. R. App. P. 26.1. Accordingly, mandamus cannot lie.

          We deny the petition.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      May 4, 2004

Date Decided:         May 5, 2004

is a detailed description of the wrongdoing along with a statement that the event was witnessed firsthand, when a citizen puts herself in a position to be held accountable for her intervention, or when the citizen is not connected with the police or a paid informant." Turley, 242 S.W.3d at 181. "When police receive information from a private citizen whose only contact with the police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the information is inherent." Cornejo v. State, 917 S.W.2d 480, 483 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd).

Based on the totality of circumstances, we conclude that Officer Turentine had reasonable suspicion to stop Appellant. To begin with, Holt's citizen-informant tip was sufficiently reliable. He was not anonymous; he had identified himself by name and occupation to the dispatcher, who then relayed at least the occupational information to Turentine. Holt was thus in a position to be held accountable for his intervention, one factor indicating the tip was reliable. Further, Holt relayed events he had witnessed firsthand, another indication of reliability. There is no indication in the record Holt was a police employee or paid informant, or otherwise had any motivation to lie such that would give the officer pause to doubt Holt's reliability. Holt was also a professional firefighter, making him one of the types of people (along with teachers and police officers) that we teach our children are generally trustworthy and reliable. Officer Turentine also responded to the dispatch in a short amount of time and had an opportunity to corroborate Holt's description of the vehicle with the officer's own observations. Under the totality of these circumstances, we agree with the trial court's conclusion that Officer Turentine had sufficient, reasonable, articulable facts to justify the temporary detention of Appellant's vehicle.

Since Appellant does not challenge the propriety of any of the events following the initial detention, we overrule Appellant's sole point of error and affirm the trial court's judgment.

Bailey C. Moseley

Date Submitted: October 2, 2008

Date Decided: October 3, 2008

Do Not Publish

1. After the trial court denied his motion to suppress, Pospisil pled guilty and submitted the issue of punishment to the trial court's discretion. The trial court assessed Pospisil's punishment at imprisonment for thirty months, with credit for 324 days already served.