Justin Sowell v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2013
• Docket: 03-12-00288-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00288-CR

Justin Sowell, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. C-1-CR-10-209526, HONORABLE BOB PERKINS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Justin Sowell pleaded no contest to driving while intoxicated. See Tex.

Penal Code Ann. § 49.04(a) (West Supp. 2012).1 In accordance with the plea bargain, the trial court

adjudged Sowell guilty, sentenced him to ten days’ confinement in the Travis County Jail, and

ordered that his license be suspended for 180 days. In his only issue on appeal, Sowell asserts that

the trial court erred in overruling his pretrial motion to suppress evidence. We affirm the judgment

of the trial court.

BACKGROUND

At 2:36 a.m., a yet-to-be identified male called 911 and reported that he was being

chased by a red Chevrolet pickup truck near the intersection of Lamar Boulevard and Manchaca

1 We cite to the current versions of the statutes for convenience because there have been no intervening amendments that are material to our disposition of this appeal. Road in Austin. The caller stated that there were multiple suspects in the truck and that they were

throwing objects from the truck at his car. The caller further stated that he was able to read a portion

of the truck’s license plate, which the caller stated was a Texas license plate beginning with the

characters “74W.”

The 911 dispatcher relayed the information to several officers with the Austin Police

Department, including Officer Vance Debes, who was patrolling the area near the reported

disturbance. Officer Debes immediately proceeded toward the reported disturbance in his patrol

vehicle to assist other officers who were in route. Four minutes later, Officer Debes received an

update that the red truck was leaving the scene and heading northbound on Lamar Boulevard. At

that time, Officer Debes was in the general area of Lamar Boulevard and Barton Springs Road.

Based on his familiarity with the area, Officer Debes estimated that it would take the suspect

vehicle between two and three minutes to drive from its current location to the intersection of

Lamar Boulevard and Barton Springs Road.

Officer Debes proceeded to drive southbound on Lamar Boulevard to intercept the

suspects’ truck. Officer Debes would later testify that at that time of night, there was “barely any

traffic on the road” and he estimated that he observed only“one or two” vehicles in the area. Officer

Debes soon passed a red Chevrolet pickup driving northbound on Lamar Boulevard with multiple

subjects in the vehicle.

Given that the truck matched the description of the suspect vehicle and was heading

in the same direction, on the same road, at the same time as the caller reported, Officer Debes “made

a U-Turn in order to get behind the subject to see whether or not that was going to be the vehicle

2 involved.” After Officer Debes made the u-turn, the driver of the truck began to accelerate, and

made a hard right turn onto Barton Springs Road. Based on his experience, Officer Debes believed

the driver of the truck was trying to evade him, and he immediately caught up with the suspect

vehicle and activated his emergency lights to signal the truck to pull over. The driver of the truck,

later identified as Sowell, pulled over. At this point, Officer Debes confirmed that the truck’s license

plate was “74WXT8,” matching the first three letters identified by the caller, and a subsequent search

of vehicle registration records indicated that the truck was registered to Sowell.2

Officer Debes approached the truck to speak with Sowell and, according to Officer

Debes, he soon detected the strong odor of alcohol emanating from the vehicle. As Officer Debes

explained, “[a]t that point, it was turning into a DWI investigation.” Based on his further observations,

Officer Debes arrested Sowell for driving while intoxicated. Sowell was charged with driving while

intoxicated and criminal mischief. See id. §§ 28.03 (West 2011), 49.04(a).

Before trial, Sowell filed a motion to suppress the evidence obtained from Officer

Debes’s traffic stop, asserting that Officer Debes lacked reasonable suspicion to support the stop.

The trial court conducted a pretrial hearing on Sowell’s motion to suppress, during which Officer

Debes testified about the events leading to the stop as outlined above. Following Officer Debes’s

testimony, the trial court denied Sowell’s motion to suppress.

Sowell subsequently entered into a plea bargain with the State to plead no contest to

driving while intoxicated in exchange for the State’s dismissal of the criminal mischief charge and

2 Officer Debes would later testify that even if the license plate numbers had not matched those provided by the unidentified caller, he still would have stopped the truck because it matched the description of the suspect vehicle, contained multiple subjects, and because he had observed the truck being evasive.

3 recommendation that Sowell receive the sentence outlined above. The trial court accepted Sowell’s

plea, found Sowell guilty of driving while intoxicated, and sentenced him in accordance with

the plea bargain. Sowell filed this appeal, asserting that the trial court erred in denying his pretrial

motion to suppress evidence obtained pursuant to the stop. See Tex. R. App. P. 25.2(a)(2)(A)

(providing that defendant convicted in accordance with plea bargain may appeal “those matters that

were raised by written motion filed and ruled on before trial”).

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress for an abuse of discretion,

using a bifurcated standard. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);

Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997). We give almost total deference

to a trial court’s determination of historical facts, but review the application of the law to the

facts de novo. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The ruling will be

upheld if it is supported by the evidence and is correct under any legal theory. See State v. Iduarte,

268 S.W.3d 544, 548 (Tex. Crim. App. 2008).

DISCUSSION

In his only issue on appeal, Sowell asserts that the trial court erred in denying his

motion to suppress the evidence obtained during the traffic stop. Specifically, Sowell argues that

the warrantless traffic stop was conducted pursuant to an anonymous tip that did not provide

sufficient indicia of reliability, and thus Officer Debes lacked reasonable suspicion to conduct the

stop. Therefore, according to Sowell, any evidence obtained as a result of the unlawful traffic stop

4 is inadmissible. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005) (requiring exclusion of

evidence that was unlawfully obtained).

A police officer may conduct a brief investigative detention if he has reasonable

suspicion to believe that an individual is involved in criminal activity. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005); State v. Griffey, 241 S.W.3d 700, 703 (Tex. App.—2007, pet. ref’d).

The reasonableness of the temporary detention is examined based on the totality of the circumstances,

and an officer must point to specific articulable facts that, when combined with rational inferences

from those facts, lead him to reasonably suspect that a specific person has engaged, or soon would

engage, in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

“The factual basis for stopping a vehicle need not arise from the officer’s personal

observation, but may be supplied by information acquired from another person.” Brother v. State,

166 S.W.3d 255, 257 (Tex. Crim. App. 2005). A tip by an unnamed informant of undisclosed

reliability may justify the initiation of an investigation, but standing alone, it rarely will establish

reasonable suspicion to justify an investigative detention. Florida v. J.L., 529 U.S. 266, 269 (2000);

Parish v. State, 939 S.W.2d 201, 203 (Tex. App.—Austin 1997, no pet.). There must be some

further indicia of reliability from which a police officer may reasonably conclude that the tip is

reliable and therefore detention is justified. Alabama v. White, 496 U.S. 325, 329 (1990); Brother,

166 S.W.3d at 258.

Generally, an informant’s tip is more reliable if the informant provides a detailed

description of the wrongdoing, states that he observed the wrongdoing first hand, or puts himself in

a position to be held accountable if his information is incorrect. Reesing v. State, 140 S.W.3d 732,

5 736 (Tex. App.—Austin 2004, pet. ref’d). Furthermore, an informant’s tip is more reliable if the

officer is able to corroborate any of the informant’s information. Brother, 166 S.W.3d at 257.

Corroboration does not mean that the officer must personally observe the alleged unlawful conduct,

but merely requires that the officer confirm enough facts from the informant’s statement to

reasonably conclude that the informant is reliable. Id. at 259 n.5. “Where the reliability of the

information is increased, less corroboration is necessary.” Reesing, 140 S.W.3d at 736.

According to Officer Debes’s testimony, the informant stated that he was being

chased by a red Chevrolet pickup truck with a Texas license plate starting with the characters “74W.”

The informant stated that there were multiple occupants in the truck who were throwing objects

from the truck at his car. Finally, the informant provided the intersection where the disturbance was

occurring and stated that the truck was fleeing the scene heading northbound on Lamar Boulevard.

The trial court could have reasonably found that this detailed account of the informant’s first-hand

observations made the informant’s statements sufficiently reliable. See id. at 736 (noting that

informant’s tip more reliable if includes detailed description or includes first hand observations);

see also Sawyer v. State, No. 03-07-00450-CR, 2009 WL 722256, at *4–5 (Tex. App.—Austin

Mar. 19, 2009, no pet.) (mem. op., not designated for publication) (upholding traffic stop based on

911 caller who told dispatcher make, model, and color of vehicle, vehicle’s last location, direction

vehicle was traveling, and description of erratic driving).

Furthermore, although it appears that Officer Debes did not know the name of the

informant at the time he acted on the tip, the informant put himself in a position to be identified

by calling 911 from a cell phone and remaining on the phone for an extended period of time

6 while relaying information to law enforcement.3 By putting himself in a position to be identified by

law enforcement, the informant made it more likely that he could be held accountable if the

information he provided to law enforcement were false. See State v. Fudge, 42 S.W.3d 226, 241

(Tex. App.–Austin 2001, no pet.) (upholding traffic stop based solely on cab driver’s face-to-face

report to police officer that suspect-driver “couldn’t stay on the road” because cab driver put himself

in position of being accountable for information). Thus, the trial court could have reasonably found

that the informant’s statements were sufficiently reliable because the informant put himself in a

position to be held accountable. Id.

Finally, Officer Debes was able to corroborate some of the information provided by

the informant before making the traffic stop. Officer Debes observed (1) a red Chevrolet pickup

truck (2) with multiple suspects (3) driving northbound on Lamar Boulevard (4) at a time that

corresponded to leaving the area of the reported disturbance. These observations corroborated the

informant’s information, and Officer Debes’s subsequent determination that Sowell was trying to

evade him is further corroboration that Sowell was fleeing the scene. See Sawyer, 2009 WL 722256,

at *5 (upholding traffic stop where officer was able to confirm description of car in area of reported

erratic driving).

Thus, the record indicates that the informant provided a detailed first-hand account

of unlawful activity, the informant put himself in a position of being accountable for the information

3 In fact, Officer Debes’s affidavit for warrant of arrest includes the names of two individuals who were described as 911 callers. Given that the trial court took judicial notice of its file during the hearing on Sowell’s motion to suppress, the court could have reasonably concluded that the police were able to identify the caller or callers who provided the information that led to this traffic stop.

7 he provided, and Officer Debes was able to corroborate details of the informant’s statements.

Reesing, 140 S.W.3d at 736. Given these indicia of reliability, the trial court could have reasonably

concluded that Officer Debes had reasonable suspicion to conduct the traffic stop. Thus, we cannot

conclude the trial court abused its discretion in denying Sowell’s motion to suppress. We overrule

Sowell’s only issue on appeal.

CONCLUSION

Having overruled Sowell’s issue on appeal, we affirm the judgment of the trial court.

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: May 1, 2013

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