Jimmy Don Martin v. State of Texas

Opinion

NO. 12-01-00168-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JIMMY DON MARTIN,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW NO. 3 OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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Jimmy Don Martin appeals his conviction for driving while intoxicated. Appellant pleaded guilty and the trial court sentenced him to ten days in jail and a $500 fine. In one issue, Appellant asserts the trial court erred in denying his motion to suppress evidence. We affirm the trial court's judgment.

Whitehouse Police Officer Michael Bennett testified at the hearing on Appellant's motion to suppress. He explained that, at about 11:00 p.m. one night, he was notified by the police dispatcher that someone had called to report a suspected intoxicated driver. The anonymous caller specified that a white, Ford Ranger pick up truck was driving eastbound on FM 346, entering Whitehouse, and was being driven by a white male who might be intoxicated. Officer Bennett located the truck at the intersection of FM 346 and Highway 110 in Whitehouse. He got behind the truck and followed it for 1.9 miles. Officer Bennett observed the truck drive on the center stripe; then, just as a vehicle was approaching from the opposite direction, the truck's tires crossed the center stripe. At that time, the officer testified, the truck failed to yield half the roadway to oncoming traffic. The truck traveled at a rate of thirty-five miles per hour while Officer Bennett followed it, even though they drove through thirty-five, forty-five, fifty, and fifty-five mile per hour zones. After observing the truck's movements for nearly two miles and reaching an area where he could safely do so, Officer Bennett attempted to stop Appellant. He first turned on his overhead lights but when Appellant did not stop, he turned on his sweeper light, and finally had to activate his air horn before Appellant stopped his truck.

In his sole issue, Appellant asserts that the trial court erred in denying his motion to suppress evidence in violation of the Fourth Amendment to the United States Constitution and article one, section nine of the Texas Constitution. He contends that the tip, which was provided by an unidentified caller at an unknown time, was not sufficient to justify the stop. Further, Appellant claims that Officer Bennett did not testify as to specific articulable facts supporting the reasonable suspicion necessary to justify the initial traffic stop.

Appellant also argues that the officer did not present sufficient detailed testimony regarding the alleged offenses he supposedly saw Appellant commit. The officer referred to Transportation Code section 545.051, requiring drivers to drive on the right half of the roadway, and section 554.060, requiring drivers to drive within a single lane. See Tex. Transp. Code Ann. §§ 545.051, 545.060 (Vernon 1999). Appellant asserts the officer's testimony is insufficient to show a violation of these statutes and thus the stop cannot be justified based on the officer's having witnessed an offense.

A trial court's decision on a motion to suppress is reviewed under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court should give almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. We consider de novo issues that are purely questions of law, such as whether reasonable suspicion existed at the time of the search or seizure. Id. at 87.

An officer may temporarily stop and investigate a vehicle if the officer has reasonable suspicion based on articulable facts that the detainee is connected to unusual activity with some indication that the activity is related to a crime. Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986). The test for "reasonable suspicion" requires consideration of the totality of the circumstances confronting the police. Sandoval v. State, 860 S.W.2d 255, 258 (Tex. App.- Houston [1st Dist.] 1993, pet. ref'd). Reasonable suspicion is dependent upon both the content of the information possessed by police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990). The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless search or arrest. Stone, 703 S.W.2d at 654.

While an anonymous tip or telephone call may, and usually will, justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. Alabama, 496 U.S. at 329, 110 S. Ct. at 2415-16; Clemons v. State, 605 S.W.2d 567, 570 (Tex. Crim. App. 1980). 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. Alabama, 496 U.S. at 329, 110 S. Ct. at 2415-16. Corroboration by the law enforcement officer of any information related by the informant may increase the reliability of the information. State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.- Fort Worth 1995, pet. ref'd). However, corroboration of public facts alone will not suffice to establish reliability of an anonymous informant whose credibility is unknown. Guevara v. State, 6 S.W.3d 759, 763 (Tex. App.- Houston [1st Dist] 1999, pet. ref'd). We consider whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable in its assertion of illegality, not just its tendency to identify a person, and a temporary detention is thus justified. Sailo, 910 S.W.2d at 189.

Officer Bennett was dispatched to investigate a report of a possibly intoxicated driver. The caller notified law enforcement that he suspected the white, male driver of a particularly described vehicle, at a particular location, was intoxicated. Standing alone, the tip lacks the necessary indicia of reliability because it provides no information from which to conclude the caller was honest or his information was reliable.

Officer Bennett testified that he saw the vehicle described by the caller. The officer corroborated the caller's information as to the description of the truck, its driver and its location. While following the truck, Officer Bennett observed it cross the center stripe and then return to its own lane. Further, Appellant inexplicably drove at a rate of thirty-five miles per hour even though the limit changed from thirty-five up to fifty-five miles per hour. We conclude that Appellant's conduct, and the inferences Officer Bennett could draw therefrom, gave him reason to credit the tip from the caller. See Dowler v. State, 44 S.W.3d 666, 670-71 (Tex. App.- Austin 2001, pet. ref'd) (officers investigating anonymous report of possibly intoxicated driver had reasonable suspicion to stop the vehicle after observing the vehicle's movements). Thus, the caller's indicia of reliability, combined with Officer Bennett's corroboration of the identification details and Officer Bennett's observations of Appellant's improper movements and unusually slow speed, viewed in the totality of the circumstances, provided sufficient reasonable suspicion to justify the investigative stop. See Alabama, 496 U.S. at 329-30; 110 S. Ct. at 2415-16. Because we determine that Officer Bennett had reasonable suspicion based on the caller's tip and Officer Bennett's corroboration thereof, we need not address Appellant's argument concerning the officer's alleged observation of a new offense. The trial court did not abuse its discretion by denying Appellant's motion to suppress. See Guzman, 955 S.W.2d at 89. We overrule Appellant's sole issue.

We affirm the trial court's judgment.

SAM GRIFFITH

Justice

Opinion delivered June 28, 2002.

Panel consisted of Worthen, J., and Griffith, J.

(DO NOT PUBLISH)