In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-18-00043-CR
THE STATE OF TEXAS, Appellant
V.
TERRANCE SMITH, Appellee
On Appeal from the County Court at Law Fannin County, Texas Trial Court No. 49174
Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice Burgess OPINION Terrance Smith knocked on the door of a residence, was refused entry, and then drove
away. After the encounter was reported to the Bonham Police Department (BPD), Smith was
pulled over and subsequently arrested for driving while intoxicated (DWI). Smith filed a motion
to suppress all evidence obtained after the initial stop on the ground that the arresting officer could
not reasonably conclude that he was, had been, or would be engaged in criminal activity. The trial
court agreed. Now, the State of Texas appeals the trial court’s order granting Smith’s suppression
motion. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West 2018); State v. Medrano, 67
S.W.3d 892, 894 (Tex. Crim. App. 2002). We affirm.
I. Factual and Procedural Background
At the suppression hearing, the State introduced the testimony of Joe Gentry, a patrol
sergeant with the BPD who had reviewed the arresting officer’s police report.1 Gentry testified
that, while he was on patrol on the evening of the incident, he received a notice from dispatch at
8:18 p.m. about “[a] subject beating on the door, banging on the door, and the woman refusing to
let him in.” The trial court heard that Gentry did not know the name of the woman who contacted
9-1-1 dispatchers or whether the “banging” at the door was loud. The woman, who lived at 112
North Main Street, reported that the person banging on the door was Smith and that Smith had left
her residence in “[a] Mercedes pickup truck.” She provided no description of Smith.
Gentry testified that the arresting officer stopped a silver Mercedes sports-utility vehicle
(SUV) “[s]everal blocks from the residence” after discovering that the vehicle’s license plate was
1 The arresting officer did not testify at the suppression hearing.
2 registered to Smith. According to Gentry, Officer Richard Lundy, the arresting officer, had
smelled alcohol during the stop and had seen open containers in the SUV. Gentry testified that
Smith’s blood alcohol level was in excess of the legal limit.
Bill Abbott, a narcotics investigator, provided backup to Lundy and testified that Smith
smelled of alcohol. Abbott testified that he heard the dispatch and that the woman who called 9-
1-1 had identified herself as Shamya Barnett. Abbott admitted that he recalled nothing to indicate
that Smith was a threat to Barnett. Both Gentry and Lundy stated that they did not know whether
Barnett was reliable. Aside from Gentry and Abbott’s testimony, no other evidence was presented.
In granting Smith’s suppression motion, the trial court concluded (1) that “no crime was
alleged to have been committed by the Defendant when he was stopped and that no crime had been
committed prior to his stop,” (2) that “the information the officers had at the time of the stop could
not objectively and reasonably lead [them] to believe a crime had occurred, was occurring, or
would occur,” and (3) that “the 911 caller did not establish a link between alleged crime and
Defendant because the caller did not provide a physical description of the Defendant.” 2 The State
appeals.
II. Standard of Review
“In a hearing on a motion to suppress evidence, a defendant bears the initial burden of
proof to demonstrate that the search and seizure occurred without a warrant.” Hitchcock v. State,
118 S.W.3d 844, 848 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Bishop v. State, 85 S.W.3d
2 In its findings of fact, the trial court determined that Barnett incorrectly described the vehicle’s make and did not provide a physical description of Smith.
3 819, 821 (Tex. Crim. App. 2002)). Once the defendant demonstrates that a warrantless search
occurred, the burden shifts to the State to prove that a warrant existed or that an exception, under
either the Fourth Amendment to the United States Constitution or Article I, Section 9, of the Texas
Constitution, justified the warrantless search given the totality of the circumstances. State v.
Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002); Bishop, 85 S.W.3d at 822; Hitchcock,
118 S.W.3d at 848. If clear and convincing proof satisfying the State’s burden is not offered before
the trial court, then the illegally obtained evidence may not be admitted at trial. See State v. Ibarra,
953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (Mansfield, J., concurring); Hitchcock, 118 S.W.3d
at 848. In the present case, the parties agree that the search in question was executed without a
warrant. Consequently, the State was required to prove the existence of a valid exception to the
Fourth Amendment.
“The job of an appellate court in cases such as the one before us is to review the decision
of the lower court for an abuse of discretion.” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.
App. 2006). “We view the record in the light most favorable to the trial court’s conclusion and
reverse the judgment only if it is outside the zone of reasonable disagreement.” Id. “We will
sustain the lower court’s ruling if it is reasonably supported by the record and is correct on any
theory of law applicable to the case.” Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990)). “We give almost total deference to a trial court’s express or implied determination
of historical facts and review de novo the court’s application of the law of search and seizure to
those facts.” Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).
4 III. Analysis
“A detention is either good or bad at the moment it starts.” State v. Duran, 396 S.W.3d
563, 569–70 (Tex. Crim. App. 2013). “A detention, as opposed to an arrest, may be justified on
less than probable cause if a person is reasonably suspected of criminal activity based on specific,
articulable facts.” Peucker v. State, 489 S.W.3d 592, 600 (Tex. App.—Texarkana 2016, pet. ref’d)
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). “In Terry, the Court adopted a two-part examination
to determine the reasonableness of an investigative detention.” Id. (citing Terry, 392 U.S. at 22).
“The first part of the analysis is to determine whether the officer’s action at its inception was
reasonable.” Id. (citing Terry, 392 U.S. at 16–17). Here, we are tasked with determining whether
the trial court’s ruling on this issue constituted an abuse of discretion.
An “officer must have specific, articulable facts that, when combined with rational
inferences therefrom, lead him to reasonably conclude that a particular person actually is, has been,
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-18-00043-CR
THE STATE OF TEXAS, Appellant
V.
TERRANCE SMITH, Appellee
On Appeal from the County Court at Law Fannin County, Texas Trial Court No. 49174
Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice Burgess OPINION Terrance Smith knocked on the door of a residence, was refused entry, and then drove
away. After the encounter was reported to the Bonham Police Department (BPD), Smith was
pulled over and subsequently arrested for driving while intoxicated (DWI). Smith filed a motion
to suppress all evidence obtained after the initial stop on the ground that the arresting officer could
not reasonably conclude that he was, had been, or would be engaged in criminal activity. The trial
court agreed. Now, the State of Texas appeals the trial court’s order granting Smith’s suppression
motion. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West 2018); State v. Medrano, 67
S.W.3d 892, 894 (Tex. Crim. App. 2002). We affirm.
I. Factual and Procedural Background
At the suppression hearing, the State introduced the testimony of Joe Gentry, a patrol
sergeant with the BPD who had reviewed the arresting officer’s police report.1 Gentry testified
that, while he was on patrol on the evening of the incident, he received a notice from dispatch at
8:18 p.m. about “[a] subject beating on the door, banging on the door, and the woman refusing to
let him in.” The trial court heard that Gentry did not know the name of the woman who contacted
9-1-1 dispatchers or whether the “banging” at the door was loud. The woman, who lived at 112
North Main Street, reported that the person banging on the door was Smith and that Smith had left
her residence in “[a] Mercedes pickup truck.” She provided no description of Smith.
Gentry testified that the arresting officer stopped a silver Mercedes sports-utility vehicle
(SUV) “[s]everal blocks from the residence” after discovering that the vehicle’s license plate was
1 The arresting officer did not testify at the suppression hearing.
2 registered to Smith. According to Gentry, Officer Richard Lundy, the arresting officer, had
smelled alcohol during the stop and had seen open containers in the SUV. Gentry testified that
Smith’s blood alcohol level was in excess of the legal limit.
Bill Abbott, a narcotics investigator, provided backup to Lundy and testified that Smith
smelled of alcohol. Abbott testified that he heard the dispatch and that the woman who called 9-
1-1 had identified herself as Shamya Barnett. Abbott admitted that he recalled nothing to indicate
that Smith was a threat to Barnett. Both Gentry and Lundy stated that they did not know whether
Barnett was reliable. Aside from Gentry and Abbott’s testimony, no other evidence was presented.
In granting Smith’s suppression motion, the trial court concluded (1) that “no crime was
alleged to have been committed by the Defendant when he was stopped and that no crime had been
committed prior to his stop,” (2) that “the information the officers had at the time of the stop could
not objectively and reasonably lead [them] to believe a crime had occurred, was occurring, or
would occur,” and (3) that “the 911 caller did not establish a link between alleged crime and
Defendant because the caller did not provide a physical description of the Defendant.” 2 The State
appeals.
II. Standard of Review
“In a hearing on a motion to suppress evidence, a defendant bears the initial burden of
proof to demonstrate that the search and seizure occurred without a warrant.” Hitchcock v. State,
118 S.W.3d 844, 848 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Bishop v. State, 85 S.W.3d
2 In its findings of fact, the trial court determined that Barnett incorrectly described the vehicle’s make and did not provide a physical description of Smith.
3 819, 821 (Tex. Crim. App. 2002)). Once the defendant demonstrates that a warrantless search
occurred, the burden shifts to the State to prove that a warrant existed or that an exception, under
either the Fourth Amendment to the United States Constitution or Article I, Section 9, of the Texas
Constitution, justified the warrantless search given the totality of the circumstances. State v.
Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002); Bishop, 85 S.W.3d at 822; Hitchcock,
118 S.W.3d at 848. If clear and convincing proof satisfying the State’s burden is not offered before
the trial court, then the illegally obtained evidence may not be admitted at trial. See State v. Ibarra,
953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (Mansfield, J., concurring); Hitchcock, 118 S.W.3d
at 848. In the present case, the parties agree that the search in question was executed without a
warrant. Consequently, the State was required to prove the existence of a valid exception to the
Fourth Amendment.
“The job of an appellate court in cases such as the one before us is to review the decision
of the lower court for an abuse of discretion.” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.
App. 2006). “We view the record in the light most favorable to the trial court’s conclusion and
reverse the judgment only if it is outside the zone of reasonable disagreement.” Id. “We will
sustain the lower court’s ruling if it is reasonably supported by the record and is correct on any
theory of law applicable to the case.” Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990)). “We give almost total deference to a trial court’s express or implied determination
of historical facts and review de novo the court’s application of the law of search and seizure to
those facts.” Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).
4 III. Analysis
“A detention is either good or bad at the moment it starts.” State v. Duran, 396 S.W.3d
563, 569–70 (Tex. Crim. App. 2013). “A detention, as opposed to an arrest, may be justified on
less than probable cause if a person is reasonably suspected of criminal activity based on specific,
articulable facts.” Peucker v. State, 489 S.W.3d 592, 600 (Tex. App.—Texarkana 2016, pet. ref’d)
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). “In Terry, the Court adopted a two-part examination
to determine the reasonableness of an investigative detention.” Id. (citing Terry, 392 U.S. at 22).
“The first part of the analysis is to determine whether the officer’s action at its inception was
reasonable.” Id. (citing Terry, 392 U.S. at 16–17). Here, we are tasked with determining whether
the trial court’s ruling on this issue constituted an abuse of discretion.
An “officer must have specific, articulable facts that, when combined with rational
inferences therefrom, lead him to reasonably conclude that a particular person actually is, has been,
or soon will be, engaged in criminal activity.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim.
App. 2013) (citing Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007)). “This standard
is objective, thus there need be only an objective basis for the stop; the subjective intent of the
officer is irrelevant.” Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).
“The detaining officer need not personally be aware of every fact that objectively supports a
reasonable suspicion to detain; the cumulative information known to the cooperating officers at
the time of the stop is to be considered in making the reasonable-suspicion determination.” Id. “A
911 police dispatcher is ordinarily regarded as such a cooperating officer for purposes of making
this determination.” Id.
5 “[A]lthough the information provided need not lead to the conclusion that an identifiable
penal-code offense has occurred, the information must still be sufficiently detailed and reliable to
support the reasonable suspicion that criminal activity is about to occur.” Martinez v. State, 348
S.W.3d 919, 926 (Tex. Crim. App. 2011). “[A]ctions in a series may each seem innocent enough
in isolation. If, however, when examined in the context of the totality of the circumstances, they
reasonably suggest recent or imminent criminal conduct, an investigative detention is justified.”
Arguellez, 409 S.W.3d at 663 (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
App. 2011)). “The relevant inquiry is not whether particular conduct is innocent or criminal, but
the degree of suspicion that attaches to particular non-criminal acts.” Arguellez, 409 S.W.3d at 663
(quoting Derichsweiler, 348 S.W.3d at 914). At a minimum, however, “[t]he facts must show that
an unusual activity occurred” and that “the unusual activity is related to a crime.” Martinez, 348
S.W.3d at 925.
“The reasonable suspicion determination is made by considering the totality of the
circumstances.” Arguellez, 409 S.W.3d at 663 (quoting Garcia, 43 S.W.3d at 530). Here, the facts
before the trial court included that (1) Terrance Smith “banged” on the door of a residence occupied
by Shamya Barnett at 8:18 p.m., (2) Barnett denied Smith entry, (3) Smith did not threaten Barnett,
(4) Smith left the residence in a silver Mercedes, and (5) Barnett called 9-1-1. There was no
evidence of the duration of the banging, whether it was loud, or whether officers believed the
activity to be suspicious for any other reason. There was also no evidence of how Barnett knew
Smith.
6 At the suppression hearing, no traffic violation was reported, and the only articulated
reason for stopping the SUV was Barnett’s report that the person banging on her door left in a
silver Mercedes pickup truck. Neither Gentry nor Abbott attempted to explain or suggest that it
was reasonable for the arresting officer to believe, prior to the stop, that any criminal activity was
afoot. Rather, the evidence indicated that they merely followed the directive to stop a silver
Mercedes. From here, “we review de novo whether th[ese] facts are sufficient to give rise to
reasonable suspicion.” Id. “The ultimate question is whether the officer was in possession of
specific, articulable facts that were sufficient to provide a basis for a finding of reasonable
suspicion to stop appellant’s vehicle.” Id.
We conclude that there was an absence of clear and convincing proof satisfying the State’s
burden to justify its warrantless search. In the absence of additional evidence, we find that the trial
court did not abuse its discretion in finding that the officers failed to develop reasonable suspicion
to believe that Smith had engaged in criminal activity or was about to do so. Given the absence
of evidence showing (1) the nature of Barnett and Smith’s relationship, if any, (2) that Smith had
threatened Barnett in any manner, or (3) that Smith would return to Barnett’s home after he left,
there “was no indication of crime being afoot.” See Arguellez, 409 S.W.3d at 664. Because we
find no abuse of discretion in the trial court’s decision to grant Smith’s suppression motion, we
overrule the State’s point of error. See Dixon, 206 S.W.3d at 590.
7 IV. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess Justice
Date Submitted: July 23, 2018 Date Decided: July 24, 2018
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