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Court of Appeals of Texas, Dallas.


No. 05–11–00118–CR

Decided: June 26, 2012

Before Justices O'Neill, Richter, and Lang–Miers


Opinion By Justice Richter

Following the denial of her motion to suppress, appellant pled guilty to driving while intoxicated.   The trial court sentenced her to 120 days in the county jail probated for fifteen months, a $1,000 fine, and forty hours of community service.   In two issues on appeal, appellant asserts the trial court erred by denying her motion to suppress and by ignoring her timely request for findings of fact and conclusions of law.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Findings of Fact and Conclusions of Law

The record shows that appellant's attorney requested that the trial court file findings of fact and conclusions of law, but there were no findings of fact and conclusions of law in the record initially provided on appeal.   The State argued that appellant forfeited her right to complain about the absence of findings, or alternatively, that the proper remedy was to abate the appeal.   We agree with the State's latter assertion.

The court of criminal appeals has directed that upon request of the losing party on a motion to suppress, a trial court is required to make findings of fact and conclusions of law.  State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006).   When the accused challenges the motion to suppress ruling and requests findings but the trial court does not file findings of fact and conclusions of law, the proper remedy is for the appellate court to abate the appeal and remand to the trial court to allow the trial court to make the necessary findings.   See Cullen, 195 S.W.3d at 700 (remanding to the court of appeals to order the trial court to enter findings);  see also Meekins v. State, 340 S.W.3d 454, 465 (Tex.Crim.App.2011) (“[A]ppellate courts should have the trial judge's findings of fact before disagreeing with that judge's ruling on a motion to suppress.   The court of appeals would have been well served to allow supplementation of the record with the findings of fact that appellant had requested.”);  Harper v. State, No. 07–10–0131–CR, 2011 WL 320431 at *1 (Tex.App.—Amarillo October 4, 2010 order) (abating and remanding to make findings);  Blocker v. State, 231 S.W.3d 595, 598 (Tex.App.—Waco 2007 order) (same).   Therefore, we abated the appeal, and requested that the trial court make the necessary findings.   The record has now been supplemented with the trial court's findings of fact and conclusions of law, and the record supports these findings.   Appellant's first issue is therefore overruled.

Motion to Suppress

In her second issue, appellant contends the trial court erred in denying her motion to suppress.   We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review.  Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007);  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   In reviewing the trial court's decision, we do not engage in our own factual review.  Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).   The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.   Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007).   Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor.   Amador, 221 S.W.3d at 673;  Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.Crim.App.2006);  Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.Crim.App.2002).   But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo.  Amador, 221 S.W.3d at 673;  Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005).

After police received a tip that appellant was driving erratically, she was stopped and detained.   Following an investigation, appellant was arrested and charged with driving while intoxicated.   In her motion to suppress, appellant argued that the officers stopping her car lacked reasonable suspicion to do so.   According to appellant, the officers lacked reasonable suspicion because the party from whom the police received the tip did not assert that she was engaged in any unlawful conduct.   In support of her argument, appellant notes that her car was not in a high crime area and there had been no recent burglaries.   The State responds that the reporting party's tip was a high-quality tip because of the detailed description of the vehicle and wrongdoing, the reporting party's first-hand knowledge, and the availability of the reporting party for questioning and identification.   The State further asserts that the high-quality tip was sufficiently corroborated by the officers on the scene to support a detention of appellant for reasonable suspicion of driving while intoxicated.   We agree with the State.

Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full-blown custodial arrest must be justified by reasonable suspicion.  Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).   Reasonable suspicion for a warrantless detention exists when an officer has specific, articulable facts, along with any rational inferences, that lead him to reasonably conclude that a person is, has been, or soon will be engaged in criminal activity.  Terry v. Ohio, 392 U.S. 1, 21 (1968);  Ford, 158 S.W.3d at 492.   This standard is an objective one that disregards the actual subjective intent of the officer and looks, instead, to whether there was an objectively justifiable basis for the detention Terry, 392 U.S. at 21.   In making this determination, courts look at the totality of the circumstances.   See Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App.2011), cert denied,132 S.Ct. 150 (2011).   This includes circumstances that may seem innocent enough when viewed in isolation but, when combined, suggest that criminal activity may be afoot.  Id.;  see also Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997).

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.  Adams v. Williams, 407 U.S. 143, 147 (1972).   Because reasonable suspicion is a product of both the quantity of information possessed by police and its quality, more information is required to corroborate a low-quality tip than a high-quality tip.   See Mitchell v. State, 187 S.W.3d 113, 117 (Tex.App.—Waco 2006, pet. ref'd).   Thus, when an officer receives information from an anonymous caller, the tip seldom provides reasonable suspicion for an investigatory stop.  Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011).   But when the informant provides self-identifying information that makes him accountable for the intervention, the degree of reliability significantly improves.  Id. Under the latter circumstance, the only question is whether the information provided, “viewed through the prism of the detaining officer's level of knowledge and experience, objectively supports a reasonable suspicion to believe that criminal activity is afoot.”   Derichsweiler, 348 S.W.3d at 915.

The record reflects that an off-duty deputy from another jurisdiction, Robert Hooper, observed a vehicle driving erratically and called 9–1–1 to report the suspicious vehicle.   He described a “small, white, two-door car driving slowly and making the block several times.”   The vehicle was also weaving in the lane and driving on the wrong side of the road.   Officer Hooper described the female driver of the car, which he also believed held a male passenger.   Based on his experience in law enforcement, Officer Hooper was concerned that the female driver might be intoxicated.

Dispatch advised officers in the area about the suspicious vehicle.   Officer Jennifer Kale arrived approximately five minutes later.   Officer Kale contacted Officer Hooper and confirmed some of the information Dispatch had relayed.   Officer Patrick Turner subsequently arrived to serve as backup, and also confirmed that the vehicle was the white vehicle that had been reported.   When the car was in front of Officer Hooper, he saw it swerve slightly, and was concerned that the driver might strike other cars parked on the street.   Because the car matched the description that has been provided, and having observed driving behavior consistent with what was reported, Officer Turner pulled the car over.

Appellant's reliance on the absence of suspicion about a specific crime is misplaced.   As the court of criminal appeals has observed, “[u]nlike the case with probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction.”  Derichsweiler, 348 S.W.3d at 916.   Here, Officer Hooper's tip was reliable and corroborated by Officer Kale. Then, Officer Turner observed the erratic driving behavior first-hand.   Thus, under the totality of the circumstances, the information available to Officer Turner was sufficient to stop and detain appellant.   The trial court concluded there was reasonable suspicion for the officers to initiate a traffic stop, and the record supports this determination.   Therefore, the trial court did not err in denying appellant's motion to suppress.   Appellant's second issue is overruled.   Having resolved all of appellant's issues against her, we affirm the trial court's judgment.



Do Not Publish

Tex.R.App. P. 47



Court of AppealsFifth District of Texas at DallasJUDGMENT


No. 05–11–00118–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Collin County Court at Law No. 4 of Collin County, Texas.  (Tr.Ct.No.004–82657–10).

Opinion delivered by Justice Richter, Justices O'Neill and Lang–Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 26, 2012.

/Martin Richter/


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