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Court of Appeals of Texas, Dallas.


No. 05–10–00015–CR

Decided: March 29, 2011

Before Justices Morris, Francis, and Murphy


Opinion By Justice Murphy

Andre Montoya Smith appeals his conviction for possession of marijuana in an amount two ounces or less, arguing the trial court erred by denying his motion to suppress evidence obtained as the product of a stop he contends was unlawful.   We affirm the trial court's judgment.


Responding to a domestic-disturbance report, McKinney Police Officer Shane LeClair observed a man exiting an apartment complex in a red Jeep and wearing what LeClair described as a tan and brown shirt.   Less than five minutes earlier, LeClair had received an alert that a male wearing a yellow and brown sweater within the same complex had fled the scene on foot.   LeClair testified that the man in the Jeep displayed a “wide-eyed look” when he saw LeClair.

LeClair effected a stop and asked for both the driver's license and proof of insurance, neither of which was provided.   LeClair arrested the driver, later identified as Smith, for driving without a license or proof of insurance.   At that time, LeClair had contacted other officers looking for the suspect involved with the domestic dispute and had determined Smith was not the man sought.   Smith was taken to jail for the license and insurance violations.   He was searched, and the searching officer found marijuana in Smith's pocket.

Smith was charged by information with misdemeanor possession of two ounces or less of marijuana.   The day of trial, the court heard Smith's motion to suppress and testimony from LeClair regarding the stop.   The trial court denied Smith's motion, and Smith proceeded to trial.   At trial, the issue of reasonableness of the stop was relitigated, and the jury was instructed on reasonable suspicion.   The jury found Smith guilty, and this appeal followed.


In a single point of error, Smith challenges the trial court's denial of his motion to suppress.   Specifically, Smith contends his stop violates the standard set forth in Florida v. J.L., 529 U.S. 266 (2000) in that there was no independent proof of reliability of an anonymous tip to justify the stop.

Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review.  St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007);  Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005).   We do not engage in our own factual review;  rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.  St. George, 237 S.W.3d at 725.   We give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor.  Id.;  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   We also afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.   We apply a de novo review to all other mixed questions of law and fact as well as to the trial court's application of search and seizure law.  State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008);  Guzman, 955 S.W.2d at 89.   When, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record.  Ford, 158 S.W.3d at 493.   We will uphold the trial judge's decision provided it is correct under some theory of law applicable to the case.   See St. George, 237 S.W.3d at 725;  Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003).

In reviewing the trial court's ruling, we generally consider only the evidence adduced at the suppression hearing because the ruling was based on it rather than the evidence introduced after the hearing.  Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007);  Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).   When the parties later relitigate the suppression issue at the trial on the merits, however, we consider all the evidence from both the suppression hearing as well as the trial in our review of the trial court's determination.  Gutierrez, 221 S.W.3d at 687.

Applicable Law

A police officer is justified in briefly detaining a person for investigative purposes if the officer has a reasonable suspicion that criminal activity is afoot.  Terry v. Ohio, 392 U.S. 1, 30–31 (1968);  Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997).   The “reasonable suspicion” standard is an objective one, and the burden of demonstrating reasonableness falls on the State.   See Ford, 158 S.W.3d at 492.   In assessing reasonableness, we consider the “totality of the circumstances.”  Id. at 492–93.   We look to see if the officer has specific, articulable facts that, when combined with rational inferences from those facts and the officer's experience and general knowledge, would lead the officer reasonably to conclude a particular person actually is, has been, or soon will be engaged in criminal activity.   See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000);  see also Terry, 392 U.S. at 27 (reasonable suspicion is more than “hunch”).

The factual basis for an investigatory detention may be supplied by information acquired from another person, including information relayed to one officer by other officers and the sum of the information known to those cooperating officers.   See Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App.2005);  Fearance v. State, 771 S.W.2d 486, 509 (Tex.Crim.App.1988).   When information alleged to support reasonable suspicion comes from an anonymous source, something more than the anonymous tip is required to provide the reasonable suspicion necessary to justify the detention.   See Florida v. J.L., 529 U.S. at 270.


Smith focuses his argument on the standard set forth in Florida v. J.L., contending the trial court's implied findings supporting the denial of his motion to suppress were incompatible with the doctrine involving anonymous tips.   Specifically, Smith argues there is nothing in the record corroborating the anonymous tip to justify Smith's stop.

Although the source of the tip was not disputed during the suppression hearing or the trial on the merits, the evidence shows the informant was the complainant who witnessed a criminal act and remained with officers after reporting the criminal activity.   Specifically, the record reveals LeClair stopped Smith “on the basis of what [the complainant] was supposed to have said,” namely the description of the suspect who was involved in the domestic disturbance.   LeClair also testified that the complainant remained at the apartment where Smith could have been identified and LeClair radioed other officers with a description of Smith for the complainant's confirmation of whether Smith was the sought-after suspect.   This evidence indicates a sufficient level of reliability to support reasonable suspicion.   See Victor v. State, 995 S.W.2d 216, 224 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd) (because crime was reported to police by victim, credibility and reliability of informant was inherent).

Smith also contends any suspicion of criminal activity was unreasonable because of the variance between the description of the suspect and Smith.   Specifically, Smith was a black male wearing a tan and brown shirt and leaving in a red Jeep, while the suspect was reported to be a black male on foot wearing a yellow and brown sweater.   Smith also testified at trial that he was wearing a blue shirt with tan sleeves.

These discrepancies ignore the totality of the circumstances supporting a conclusion of reasonable suspicion.   Based on the record, LeClair arrived at the apartment complex within five minutes of the police call regarding the domestic disturbance.   This complex had only one entrance and exit, and the location where LeClair spotted Smith was within 500 feet from where the domestic-disturbance incident allegedly took place.   No other vehicles were entering or exiting the complex at the time LeClair effected the stop.   LeClair also testified that, once Smith noticed LeClair, Smith looked “wide-eyed with great surprise,” which in LeClair's experience was atypical for the “motoring public.”   See, e.g., Young v. State, No. 14–99–00960–CR, 2001 WL 253702, at *3 (Tex.App.—Houston [14th Dist.] Mar. 15, 2001, no pet.) (not designated for publication) (appellant's “startled look” upon seeing police was factor supporting reasonableness of stop).   In addition, LeClair had a reliable complainant's description, and he believed Smith could be the suspect for whom the police were searching.   The discrepancy between LeClair's and Smith's descriptions was a matter for the trial court's determination based on the court's evaluation of credibility and demeanor of the witnesses.   See St. George, 237 S.W.3d at 725.   Such circumstances, viewed in their totality, support a finding of reasonable suspicion of criminal activity.   See, e.g., Louis v. State, 825 S.W.2d 752, 755–56 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd) (reasonable suspicion found when car was less than couple of miles from site of robbery, no other cars were on road at time, description of car was reasonably close to one stopped, stop was made only few minutes after police call, and description of suspect was given by victim).

Smith's arguments do not change this conclusion.   LeClair testified that, from his experience, a person leaving a scene on foot could get in a car and leave an apartment complex.   LeClair also testified he thought a tan and brown shirt was “absolutely” similar to a yellow and brown sweater and could be “easily confused.”   See, e.g., Thomas v. State, 297 S.W.3d 458, 461–62 (Tex.App.—Houston [14th Dist.] 2009, pet. ref'd) (reasonable suspicion found despite appellant not matching all elements of description of suspect);  Mount v. State, 217 S.W.3d 716, 728 (Tex.App.—Houston [14th Dist.] 2007, no pet.) (sub.op.) (reasonable suspicion found where “similar” “tan or goldish colored or silver, light colored” Cadillac stopped despite report of stolen white vehicle).   The fact that Smith ultimately was not the person who allegedly committed a crime against the complainant has no impact on this determination of reasonableness of suspicion.   See Cornejo v. State, 917 S.W.2d 480, 483 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd);  see also Mount, 217 S.W.3d at 728.

Thus, given the totality of the circumstances, we conclude LeClair had reasonable suspicion to detain Smith and ask for his identification and other documentation.   Accordingly, the trial court did not err in denying Smith's motion to suppress, and Smith's sole point of error is overruled.


For the reasons stated above, we affirm the trial court's judgment.


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