ACCEPTED 12-15-00128-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/17/2015 12:00:00 AM CATHY LUSK CLERK
NO. 12-15-00128-CR
RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 8/16/2015 1:15:36 PM IN THE TWELFTH COURT OF APPEALS CATHY S. LUSK Clerk TYLER, TEXAS
8/17/2015
ROBERT LAFAYETTE WALKER,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT’S BRIEF
Beverly D. Melontree Attorney at Law 213 South Fenton Avenue Tyler , Texas 75702 Bmelontree@icloud.com IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellant/Trial Counsel:
Beverly D. Melontree 213 South Fenton Avenue Tyler, Texas 75702
Attorney for the State on Appeal
Michael J. West Assistant Criminal District Attorney Smith County District Attorney’s Office 100 North Broadway Avenue, 4th Floor Tyler, Texas 75702
ii TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………………. ii
Table of Contents……………………………………………………………….. iii
Index of Authorities…………………………………………………………….. iv
Statement of the Case…………………………………………………………… 2
Issues Presented………………………………………………………………… 2
I. The Videotape from the Patrol Car’s Camera Does not Support the Testimony of the State Trooper……………………………… 5
II. What the Anonymous Caller Witnessed was Never Corroborated by the State Trooper …………………………………………. 13
III. The Anonymous Caller Failed to Give a Detail Description.. 17
Statement of Facts………………………………………………………………. 2
Statement of Argument………………………………………………………….. 5
Argument………………………………………………………………………… 5
A. Standard of Review……………………………………………………. 5 B. Trial Court Findings…………………………………………………… 7
Conclusion and Prayer…………………………………………………………… 19
Certification of Compliance …………………………………………………….. 20
Certificate of Service……………………………………………………………. 21
iii INDEX OF AUTHORITIES
SUPREME COURT
Alabama v. White, 496 U.S. 325, 329; 110 S.Ct. 2410, 110; L.Ed2d 301 (1990)…………….13
Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1378; 146 L.Ed.2d 254-261 (2000)……………..14
Henry v. United States, 361 U.S. 98; 80 S.Ct. 168, 171; 4 L.Ed.2d 134 (1959)…………………….6
Terry v. Ohio, 392 U.S. 1, 22; 88 S.Ct. 1868; 20 L.ed.2d 889 (9168)……………………..6
TEXAS COURT OF CRIMINAL APPEALS
State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)………………………...…...6
Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005)……………………...…….17
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)…. ………………….6,9,10,12
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)……………………….6,7,9,10
Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002)………………………....6,7
Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)……………………………..7
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)…………………………….6
iv State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)…………………...................6
State v. Weaver 349 S.W.3d 521, 525 (Tex. Crim. App. 2011).…………………………….7
State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011)…………………...………..7
TEXAS COURTS OF APPEAL
Best v. State, 118 S.W.3d 856, 861 (Tex. App. –Fort Worth, no pet.)………..……….....6
Davis v. State, 989 S.W.2d 859, 863(Tex. App. –Austin 1999, pet. ref. )……………13,15
State v. Fudge, 42 S.W.3d 226, 230 (Tex. App. –Austin 2001, no pet.)…………..……...16
Harrison v. State, 144 S.W.3d 82, 85 (Tex. App. –Fort Worth 2000,pet. granted)…………..6
Hawes v. State, 125 S.W.3d 535, 538-39 (Tex. App. –Houston [1st Dist.] 2002, no pet.)...16
State v. Houghton, 384 S.W.3d 441, 448 (Tex. App. –Fort Worth 2012, no pet.)………........12
Reesing v. State, 140 S.W.3d 732, 737 (Tex. App. –Austin 2004, pet. ref’d)………………18
State v .Salilo, 910 S.W.2d 184, 188-89 (Tex. App. –Fort Worth 1995, pet. ref’d)…16,17
CONSTITUTIONAL PROVISIONS
U.S.CONST. AMEND. IV…………………………………………………………5
v WESTLAW
State v. Palmer, 2005 WL 555281, 3-4 (2005)……………………………………………11
vi NO. 12-15-00128-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
ROBERT LAFAYETTE WALKER
THE STATE OF TEXAS
On Appeal from the County Court at Law Number Three of Smith County, Texas Trial Cause No. 003-82609-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Robert Lafayette Walker, by and through his attorney of
record, Beverly D. Melontree, and files his brief pursuant to the TEXAS RULES
OF APPELLATE PROCEDURE, and would show the Court as follows: STATEMENT OF THE CASE
This is a motion to suppress case for driving while intoxicated – 2nd
offense. Mark Lafayette Walker (hereinafter referred to as “Mr. Walker”)
appeals the denial of the motion to suppress and conviction for the offense. Mr.
Walker was charged with the above-mentioned misdemeanor offense on July 3,
2014 (CR 1). After the Court denied (CR 55) Mr. Walker’s motion to suppress
(CR 41-54), Mr. Walker plead “guilty” and was sentenced to serve 200 days in
the Smith County jail. (CR 77). Notice of Appeal was timely filed. (CR 82-83).
ISSUES PRESENTED
I. THE VIDEOTAPE FROM THE PATROL CAR’S CAMERA DOES NOT SUPPORT THE TESTIMONY OF THE STATE TROOPER.
II. WHAT THE ANONYMOUS CALLER WITNESSED WAS NEVER CORROBORATED BY THE STATE TROOPER
III. THE ANONYMOUS CALLER FAILED TO GIVE A DETAIL DESCRIPTION.
STATEMENT OF FACTS
On July 3, 2015, Mr. Walker was traveling his truck on the public streets of
Tyler, Texas in Smith County. According to the testimony of the state trooper
and the evidence presented at the hearing, an anonymous caller called the
Sheriff’s Office Communications Center. He reported that he was witnessing a
drunk driver (RR p. 7, lines 6-7; RR p. 8, lines 1-17). Unbeknownst to the
anonymous caller, he had called the wrong dispatch; and therefore, his call was
2 transferred to DPS 911. However, when the anonymous caller was transferred to
DPS 911, the anonymous caller was only able to state the following: “I want to
report a drunk driver.” (RR p. 8, lines 15-18). The DPS operator asked the
anonymous caller the location, and afterwards the call was disconnected.
At the Motion to Suppress hearing, the state prosecutor informed the trial
court that the DPS 911 call did not transfer. (RR p. 8, lines 20-25). (See State’s
Exhibit No. 1). He further stated on the record, that the State was unable to
produce the DPS 911 call (RR p. 8, lines 19-25; p. 18, lines 20-22; p. 11, line
16; p. 20, lines 1-25).
As the hearing continued, the state trooper further testified that when he
received the call in regards to a “drunk driver” driving recklessly, he was in the
immediate area. (RR p. 12, lines 1-8). The state trooper turned his patrol cruiser
around to pursue the “drunk driver” on Cumberland Road. (RR p. 12, lines 14-
16).
While in hot pursuit of the alleged drunk/reckless driver, the state trooper
further testified that the vehicle in front of him was the 911 caller; and therefore,
he flashed his lights and went around the 911 caller to pursue Mr. Walker in his
truck. (RR. p. 11, lines 14-25; See State’s Exhibit No. 2). Shortly thereafter, the
state trooper initiated a traffic stop on Mr. Walker because according to his
testimony, he witnessed Mr. Walker’s truck cross the double-yellow line. He
3 also testified that after he witnessed the alleged traffic violation, he had probable
cause and reasonable suspicion to initiate the stop and not on the reliance of the
DPS 911 call. (RR p. 13, lines 1-25; p. 14, lines 1-3; p. 15, lines 21-25; p. 16,
lines 5-25; p. 17, lines 8-9; lines 20-25; p. 22, lines 2-25; p. 23, lines 1-15).
During the hearing, the state trooper was unable to show defense counsel,
on the videotape, where Mr. Walker’s truck actually crossed the double-yellow
line. He testified that he documented the traffic violation in his case report and
without a doubt, had witnessed Mr. Walker commit the traffic violation. (RR p.
23, lines 16-25; p. 24, lines 1-4). After the trooper finished his testimony, both
parties rested and gave final arguments.
Defense counsel argued to the trial court the failure of the videotape not
corroborating the state trooper’s testimony in regards to Mr. Walker’s vehicle
crossing the double-yellow line. Also, defense counsel argued the State’s failure
to present the DPS 911 tape. However, the trial court informed defense counsel
that there was no case law stating that the state trooper’s testimony had to be
corroborated by the video, if one was present. (RR p. 29, lines 13-18; p. 30, lines
14-19; p. 31, lines 19-25; p. 31, lines 1-15). As for the traffic violation, the state
prosecutor concurred with defense counsel. The state prosecutor argued that it
was “his belief” that according to the videotape, it appeared to him that Mr.
Walker’s truck was at least on the double-yellow line. (RR p. 33, lines 9-13).
4 From the state prosecutor’s own argument, it was quite obvious that Mr.
Walker’s truck’s wheel touched the double-yellow line, but did not cross it.
Despite the fact the trial court denied Mr. Walker’s Motion to Suppress,
(CR 55) and Mr. Walker was sentenced to 200 days confinement in the Smith
County jail. (CR 77). This appeal follows. (CR 82-83).
STATEMENT OF ARGUMENT
Issue One: Recent case law has held that if the videotape presents
indisputable visual evidence contradicting essential portions of an officer’s
testimony, then the courts will forego the “credibility and demeanor” of the
witness. The Appellate courts will review de novo; the trial court’s rulings on
mixed questions of law and fact.
Issue Two: A tip from an anonymous caller standing alone, rarely supplies
reasonable suspicion for a stop because it lacks “sufficient indicia of reliability”
ARGUMENT
I. THE VIDEOTAPE FROM THE PATROL CRUISER’S CAMERA DOES NOT SUPPORT THE TESTIMONY OF THE STATE TROOPER.
A. Standard of Review.
The Fourth Amendment protects against unreasonable searches and
seizures. U.S. Const. amend IV. For an arrest to be justified under the Fourth
Amendment, it must be accompanied by probable cause to believe that a person
5 has engaged in or is engaging in criminal activity. Henry v. United States, 361
U.S. 98, 80 S.Ct. 168, 171, 4 L.Ed. 2d 134 (1959). A detention, however, may
be justified on less than probable cause if a person is reasonably suspected of
criminal activity based on specific articulable facts. Terry v. Ohio, 392 U.S. 1,
22 , 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323,
328 (Tex. Crim. App. 2000).
Appellate courts review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Carmouche, 10 S.W.3d at 327;
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the
trial court’s decision, the appellate courts do not engage in their own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App. –Fort Worth 2003, no pet.). The judge is
the sole trier of fact and judge of the credibility of the witnesses and the weight
to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). The
appellate courts give almost total deference to the trial court’s rulings on (1)
question of historical fact and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644,
652-53 (Tex. Crim. App. 2002); Harrison v. State, 144 S.W.3d 82, 85 (Tex.
App. –Fort Worth 2004, pet. granted); Best,118 S.W.3d at 861-862. Therefore,
6 when the trial court’s rulings do not turn on the credibility and demeanor of the
witnesses, then the appellate courts will review de novo at trial court’s rulings
on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.
Appellate courts also afford almost total deference to the trial judge’s
determination of facts (if those facts are supported by the record) when they
review a suppression ruling. State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim.
App. 2011); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). That same
deferential standard of review “applies to a trial court’s determination of
historical facts (even) when that determination is based on a videotape recording
admitted into evidence at the suppression hearing”. Montanez v. State, 195
S.W.3d 101, 109 (Tex. Crim. App. 2006).
B. Trial Court Findings.
At the end of the hearing, defense counsel requested that the trial court
prepare the findings of facts and conclusion of law. However, defense counsel
failed to timely file the motion as instructed by the trial court. (RR p. 34, lines
20-25; RR p. 35, lines 1-4). Nevertheless, in defense counsel’s closing
argument, the trial judge actually gave his facts and conclusion of law (RR p.
30, lines 14-25; p. 31, lines 1-25; p. 32, p. 32, lines 1-16); and therefore, defense
7 counsel respectfully request that this Court consider the judge’s statements as
his finding of facts and conclusion of law.
In our case, it depends upon a single fact and not any legal issue: “Did the
state trooper actually see a traffic violation before he detained Mr. Walker?
During the state trooper’s cross examination with defense counsel, he was
unable to point on the videotape where Mr. Walker actually committed the
traffic violation (crossing over the double yellow-line) to initiate the stop. He
testified as follows: (RR p. 23, lines 16-25; RR p. 24, lines 1-4):
Melontree: Where on there did he cross the yellow line? I’m trying to see it. Show me.
Trooper: He crosses the yellow line. It’s in my case report.
Melontree: So where is it on the video?
Trooper: It’s in the video prior to me going around the vehicle?
Melontree: We don’t see it, do we?
Trooper: I can’t help that the camera is posted over—is stationed over my passenger seat and it’s zoomed way out. So I can’t, while I’m driving down the road, make sure the camera captures everything while I’m trying to stop people that are crossing yellow lines.
Likewise, the Court too concurred with the state trooper in regards to the
videotape not capturing the alleged traffic violation and stated the following:
The Court: Let me ask you this: Are you saying that a hundred percent of what the officer observed has to be reflected on the video?
8 Melontree: I think so.
The Court: I don’t think there’s any cases that say that.
Thus, most recent case law disagrees with the trial court’s statement. In
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) the arresting officer
(Ranger Williams) testified that Appellant consented to the search of his person.
However, Appellant maintained that he made no gestures that could be
construed as an indication of consent. Appellant also argued that even if the
Court found some action on his part that might be taken as affirmative consent,
that consent was not given voluntarily, but was instead a submission to an
overwhelming display of police authority. During the detention of Appellant a
video was recording the detention. The Court of Criminal Appeals reviewed the
video and concluded that the videotape from the patrol car’s camera did not
support the testimony of Ranger Williams. Specifically, the critical seconds of
the tape surrounding the time of Appellant’s consent showed a different
sequence of events than what Ranger Williams described at trial.
The tape did not support a conclusion that Appellant made gestures as an
indication of consent. The court wrote the following: “Guzman states that, ‘as a
general rule, the appellate courts, including this Court, should give almost total
deference to a trial court’s determination of the historical facts that the record
supports especially when the trial court’s findings are based on an evaluation of
9 credibility and demeanor. Guzman, 955 S.W.2d at 89. In the unique
circumstances of this case, however, we decline to give ‘almost total deference’
to the trial court’s implicit findings under which the Court of Appeals found
consent. First, we note that the trial court seems to have predicated its decision
to admit the evidence on a finding of probable cause rather than on consent.
Second, the nature of the evidence presented in the videotape does not pivot ‘on
an evaluation of credibility and demeanor’. Rather the videotape presents
indisputable visual evidence contradicting essential portions of Ranger
Williams’ testimony. In these narrow circumstances, we cannot blind ourselves
to the videotape evidence simply because Ranger Williams’ testimony may, by
itself, be read to support the Court of Appeals’ holding.”
The Court further held that the record did not support the Court of
Appeals’ finding of clear and convincing evidence that Appellant’s consent, if
given at all, was free and voluntary.” The videotape presented indisputable
visual evidence and did not pivot on “an evaluation of credibility and
demeanor.” Likewise, defense counsel argued to the trial court that the state
trooper’s testimony was not corroborated by the videotape. As previously stated,
the Court objected to the argument and stated the following: “Under case law,
you don’t.” (RR p. 30, lines 14-19). However, his statement was wrong in
accordance with Carmouche. Clearly, the state trooper was unable to show to
10 defense counsel on the videotape where Mr. Walker committed the alleged
traffic violation, but referred defense counsel to his case report, instead of the
videotape. (RR p. 23, lines 16-25; p. 24, lines 1-4). Therefore, we respectfully
request this Court to reverse the decision.
Furthermore, in State v. Palmer, 2005 WL 555281, 3-4 (2005), the police
was the only witness at Appellee’s motion to suppress hearing. He testified that
Appellee had committed a traffic violation. Besides just focusing on the
credibility and demeanor of the officer, the court viewed the videotape to see if
Appellee had committed a traffic violation per the officer’s testimony. Although
the trial court did not make written findings of fact or conclusion of law, it stated
on the record that appellee’s conduct did not constitute a traffic violation. After
the Court viewed the videotape a second time to get a closer look at the alleged
traffic violation, the court stated the following: “I just don’t see any violations to
this, so I am going to grant the motion to suppress.”
It is defense counsel’s argument, along with Mr. Walker that like the
above-mentioned cases, the trial court did not have to rely solely on the state
trooper’s testimony. The trial court could have also relied on the videotape.
Clearly, the videotape did not corroborate the state trooper’s testimony. There is
indisputable visual evidence.
11 Additionally, in State v. Houghton, 384 S.W.3d 441, 448 (Tex. App. –Fort
Worth 2012, no pet.), the arresting officer testified that Appellant crossed the
double-yellow line. When the court reviewed the video recording, the judge
stated that the left-side tires of Houghton’s vehicle briefly touched but did not
cross the double-yellow line. And, the State presented no evidence at the
suppression hearing that this maneuver was performed in an unsafe manner. The
court held that the video recording likewise did not “indisputably” show that
Houghton’s vehicle failed to maintain a single lane in an unsafe manner, unlike
the video in Carmouche, in which the court of criminal appeals declined to defer
to the trial court’s determination of historical facts where “indisputable visual
evidence” shown in the video contradicted the officer’s testimony.
This issue is raise in regards to the touching of the double-yellow line
because the state prosecutor in our case argued the following (RR p. 33, lines 9-
13):
Mr. Dewitt: I believe even in the video, we can see the vehicle has driven at least onto those yellow lines, and that’s in that dividing space which would initiate validate --- a sufficient traffic stop here.
In accordance with Houghton, the state trooper had no reasonable suspicion or
probable cause to stop Mr. Walker as he drove down Cumberland Road in Smith
County, Texas; because no traffic violation had been committed by Mr. Walker.
As stated earlier, the state prosecutor too argued that from the videotape, he
12 never saw Mr. Walker’s truck cross the double-yellow line. There is
indisputable visual evidence shown in the video that contradicts the officer’s
testimony. We respectfully request that the trial court’s decision be reversed by
this Court.
Arguably, the state trooper pursued Mr. Walker from the DPS 911 call and
not because of the alleged traffic violation.
II. WHAT THE ANONYMOUS CALLER WITNESSED WAS NEVER CORROBORATED BY THE STATE TROOPER.
While an anonymous tip or telephone call may justify the initiation of an
investigation, it alone will rarely establish the level of suspicion required to
justify a detention. Alabama v. White, 496 U. S. 325, 329, 110 S. Ct. 2412, 110
L. Ed.2d 301 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex. App. –Austin
1999, pet. ref’d). Normally, a police officer must have additional facts before
the officer may reasonably conclude that the tip is reliable and an investigatory
detention is justified. See Davis v. State, 989 S.W.2d at 863.
An officer’s prior knowledge and experience and his corroboration of the
details of the tip, may be considered in giving the anonymous tip the weight it
deserves. See id at 864. But the corroboration of details that are easily
obtainable at the time the information is provided, and which do not indicate
criminal activity, will not lend support to the tip. See Id. As the United States
Supreme Court has recently written: “An accurate description of a subject’s
13 readily observable location and appearance is of course reliable in this limited
sense: It will help the police correctly identify the person whom the tipster
means to accuse. Such a tip, however, does not show that the tipster has
knowledge of concealed criminal activity. The reasonable suspicion here is at
issue requires that a tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” Florida v. J.L., 529 U.S. 266, 120 S.
Ct. 1375, 146 L.Ed.2d 254, 261 (2000).
Likewise, in our case-in-chief, the anonymous caller gave no identification
of the vehicle that was supposedly driving recklessly on the highway.
Furthermore, when the state trooper observed Mr. Walker in his truck, the state
trooper did not witness any reckless driving. The only thing that the state trooper
allegedly witnessed, according to his case report, was Mr. Walker allegedly
crossing the double-yellow line into opposing traffic. Thus, according to the
videotape, it does not show that Mr. Walker had committed a traffic violation to
justify the traffic stop.
The state trooper witnessed no other traffic violation to corroborate the
anonymous tip and only acted solely on the basis of what he had allegedly
received from dispatch. Furthermore, the anonymous caller did not identify
himself/herself. The anonymous caller did not stop at the scene, or otherwise
come forward. Clearly, the anonymous tip did not justify the initiation of an
14 investigation. For example, in Davis a police officer was informed that a caller
had reported that a particularly described vehicle was being driven northbound
on Interstate 35 at a specified location; that it was occupied by three males; that
the vehicle was being driven recklessly; and that the occupants were possibly
smoking marihuana. See 989 S.W.2d at 861. The officer positioned himself to
intercept the suspect vehicle and stopped it. The officer witnessed no offense
and acknowledged that he acted solely on the basis of the tip.
The caller did not identify himself, stop at the scene, or otherwise come
forward. The Court held that the “anonymous tip, uncorroborated as to the
significant aspects by independent police work, did not exhibit sufficient indicia
of reliability to justify the investigative stop.” Id at 865. Like Davis, the State
has failed to present the 911 tape that was made to DPS and supposedly relayed
to the trooper. (RR p. 20, lines 1-17) The only thing that the State had to rely on
was the state trooper’s testimony, along with the trial court. However, the state
trooper’s testimony failed to corroborate the videotape in regards to the stop,
along with the DPS 911 caller.
Also, the state trooper had the opportunity to seek out the DPS 911 caller,
but failed to do it. For instance, he testified that after he has stopped Mr.
Walker’s truck, the DPS 911 caller stopped behind them. (RR p. 12, lines 5-8; p.
14, lines 17-25; p. 15, lines 19-25; p. 16, lines 1-14; p. 17, lines 10-23; p. 18,
15 lines 14-16, lines 20-22; p. 20, lines 11-17; p. 22, lines 2-25). However, the state
trooper never approached the DPS 911 caller nor did the anonymous caller
approach the state trooper to give his information and what he witnessed to
justify the investigative stop.
Moreover, courts traditionally distinguish between anonymous informants
that call 911 verses those that tell an officer the tip face-to-face manner. State v.
Fudge, 42 S.W.3d 226, 230 (Tex. App. –Austin 2001, no pet.). A person, not
connected with the police, “who gives a police officer unsolicited information in
a face-to-face manner is inherently reliable.” The citizen’s providing
information directly to an officer in person, makes the information significantly
more reliable than a simple anonymous telephone call. Hawes v. State, 125
S.W.3d 535, 538-39 (Tex. App. –Houston [1st Dist.] 2002, no. pet.); State v.
Salilo, 910 S.W.2d 184, 188-89 (Tex. App. –Fort Worth 1995, pet. ref’d).
There is something in the record that should cause this Court to doubt the
reliability of the anonymous caller. For instance, the anonymous caller never
came forward to give the officer unsolicited information in a face-to-face
manner. Nor did the state trooper attempt to approach the 911 caller when it was
stopped behind him on the traffic stop of Mr. Walker’s truck. (RR p. 18, lines
14-15; p. 15, lines 19-25; p. 16, lines 1-9; p. 17, lines 12-25; p. 18, lines 14-15).
The videotape does not corroborate the state trooper’s testimony and the state
16 trooper acted solely on the DPS 911 call. We respectfully request this Court to
reverse the trial court’s decision.
Furthermore, the Court held in Salilo that a person presenting oneself to a
police officer, and doing so while driving a car from which an identity might
easily be traced, is in a better position to be held accountable for the intervention
unlike a person who makes an anonymous telephone call. Clearly, the State
never presented any evidence through its one witness to make the DPS 911 call
reliable. Ultimately, the state trooper responded because of the DPS 911 call and
stopped Mr. Walker’s truck; on the DPS 911 call and not the alleged traffic
violation.
III. THE ANONYMOUS CALLER FAILED TO GIVE A DETAIL DESCRIPTION.
Also, the alleged 911 anonymous tipster failed to give a detail description of
Mr. Walker’s driving behavior; it was conclusory. For instance, in Brother v.
State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005), the defendant’s erratic
driving was reported by a citizen who called 911 on her cell phone after she
witnessed the defendant speeding, tailgating, and weaving across several lanes
of traffic. The citizen continued to follow the defendant and monitored his
driving, while remaining in contact with the 911 operator until the defendant
was stopped by a police officer. Afterwards, the citizen remained at the scene of
the stop and provided the officer with her contact information. Although the
17 officer did not personally witness a traffic violation, the court of criminal
appeals affirmed the court of appeals’ judgment that under the totality of the
circumstances, the stop was reasonable under the Fourth Amendment. Id. At
259-60.
Furthermore, in Reesing v. State, 140 S.W.3d 732, 737 (Tex. App. –Austin
2004, pet. ref’d), an identified caller to 911 reported seeing the defendant, who
displayed signs of intoxication in the caller’s presence, driving away from a
store. The caller provided a description of the defendant and his car and
followed him in his own vehicle, reporting the defendant’s location and
describing his erratic driving. The defendant was stopped by a police officer
acting on the basis of the information supplied by the caller and who did not
personally see the defendant commit an offense. Id. at 735. The Court held
that under the totality of the circumstances, the officer had a reasonable basis for
suspecting that the defendant was driving while intoxicated and to stop him for
further investigation.
As previously stated, the state trooper did not have a reasonable basis for
suspecting that Mr. Walker was driving while intoxicated. For instance, the State
never provided the DPS 911 call to confirm the state trooper’s testimony. And
even without the DPS 911 tape, the state trooper was unable to show where Mr.
Walker had committed a traffic violation in his presence. (RR p. 23, lines 16-25;
18 p. 24, lines 1-4). Additionally, the state trooper could not recall pertinent issues
regarding Mr. Walker’s driving behavior. (RR p. 20, lines 4-10). The state
trooper’s stop was not justified in accordance with the above-mentioned case
law to further the investigation. Clearly, the evidence is indisputable in regards
to the videotape and the state trooper’s testimony. Therefore, we respectfully
requests that this Court reverse the trial court’s decision.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel respectfully prays that
the Court hold that the trial court erred by denying Appellant’s Motion to Suppress
and render a judgment of acquittal.
Respectfully submitted,
By:
Beverly D. Melontree State Bar Number: 13922100 213 S. Fenton Avenue Tyler, Texas 75702 Telephone: 713-480-2674 Facsimile: 903-747-3760 bmelontree@icloud.com
19 CERTIFICATE OF COMPLIANCE
STATE OF TEXAS § § COUNTY OF SMITH §
“The word count for Appellant’s Brief is less than the 15,000 word count in
accordance with the Appellate Rules 9.4 (2)(B) and 9.4 (3) and that the facts stated
in it are within her personal knowledge and are true and correct.”
BEVERLY D. MELONTREE
20 CERTIFICATE OF SERVICE
I do hereby certify that on Sunday, August 16, 2015, a true and correct copy of the Appellant’s Brief has been forwarded by efiling to the following counsel:
Mr. Michael J. West Assistant Criminal District Attorney Smith County District Attorney’s Office 100 North Broadway Avenue, 4th Floor Tyler, Texas 75702
___________________________ Beverly D. Melontree