Jerry Clint Kirkpatrick v. State ( 2010 )

NO. 12-09-00453-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JERRY CLINT KIRKPATRICK, ' APPEAL FROM THE
APPELLANT
V. ' COUNTY COURT AT LAW #1
THE STATE OF TEXAS,
APPELLEE ' GREGG COUNTY, TEXAS
MEMORANDUM OPINION
Jerry Clint Kirkpatrick appeals his conviction for driving while intoxicated (DWI). In his
sole issue, he contends that the trial court abused its discretion when it denied his motion to
suppress evidence. We affirm.
BACKGROUND
Appellant was charged by information with DWI. He pleaded not guilty and filed a motion
to suppress evidence. Only Officer Prew of the Longview Police Department, the arresting
officer, testified at the suppression hearing. Officer Prew testified that shortly after 3:00 a.m. on
February 8, 2009, a tipster called the Longview Police Department and reported a “harassment”
call taking place at the “Waffle Shoppe on Loop 281.” The tipster provided her name and stayed
at the scene.
Officer Prew testified that he and Officer Smith, also of the Longview Police Department,
received the call from dispatch. At this time, the “call sheet” provided further information about
the nature of the call and identifying characteristics of the vehicle sought by the officers.
Specifically, the call sheet showed that there was a “possible fight in progress or that a fight may
be imminent” and that officers should look for a silver Ford F-150 with two to three occupants at
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the Waffle Shoppe. No license plate number was provided.
Officer Smith arrived first. Upon observing the truck and its occupants’ attempt to leave
the parking lot, the officer initiated his overhead lights and detained the truck as it left the Waffle
Shoppe. Officer Prew arrived moments later. Officer Prew testified that the parking lot was
sparsely occupied and no other vehicles in the lot matched the description provided by the tipster.
He stated that neither officer observed any traffic violations, nor did they have a warrant for
Appellant’s arrest.
Officer Prew interviewed Appellant while Officer Smith interviewed the tipster. Officer
Prew testified that when Appellant rolled down the window, he detected the odor of alcohol,
observed Appellant’s “red and glassy bloodshot eyes,” and noticed Appellant had “slow, slurred
speech.” The investigation transformed from a harassment call to a possible DWI stop. Based
on the information he had at the time, Officer Prew asked Appellant if he had been drinking and
Appellant said “yes.” Officer Prew then performed the horizontal gaze nystagmus (HGN) test
with Appellant’s consent. Appellant presented six of six clues for intoxication. Officer Prew
testified that Appellant refused to perform any other field sobriety tests, and based on his
observations, he arrested Appellant.
After the suppression hearing, the trial court denied Appellant’s motion to suppress.
Appellant thereafter pleaded guilty to the offense, and was sentenced to 180 days of confinement,
probated for eighteen months.
MOTION TO SUPPRESS
In his sole issue, Appellant asserts that the tip along with the officer’s failure to
independently observe Appellant commit any traffic violations provided an insufficient basis for
the traffic stop. Therefore, Appellant’s argument continues, the trial court erred in denying his
motion to suppress the evidence obtained during the stop.
Standard of Review
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). In
reviewing the trial court’s decision, we do not engage in our own factual review. See 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.
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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. See Amador, 221
S.W.3d at 673. 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. See id.
We then review de novo the trial court’s legal ruling. See State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). In our analysis, we view the evidence in the light most favorable to the
trial court’s ruling. Id.
Investigative Detentions
Law enforcement officers may stop and briefly detain persons suspected of criminal
activity on less information than is constitutionally required for probable cause to arrest. Terry v.
Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889.1 In determining whether the officer
acted reasonably in such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to
draw from the facts in light of his experience. Id., 392 U.S. at 27, 88 S. Ct. at 1883. An
investigative detention is permissible under Terry when the detaining officer has specific
articulable facts which, taken together with rational inferences from those facts, create a
reasonable suspicion that the person detained is, has been, or soon will be engaged in criminal
activity. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).
The existence of reasonable suspicion to support an investigative detention turns on the
totality of the circumstances in each case. See Alabama v. White, 496 U.S. 325, 328-29, 110 S.
Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990). Under this analysis, reasonable suspicion is dependent
upon both the content of the information possessed by the officer and its degree of reliability. Id.,
496 U.S. at 330, 110 S. Ct. at 2416. Both the quantity and the quality of the information are
considered in this analysis. Id.
Tips by Informants
A tip by an unnamed informant of undisclosed reliability, standing alone, will rarely
establish the requisite level of suspicion necessary to justify an investigative detention. White,
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Article I, section 9 of the Texas Constitution is coextensive with the Fourth Amendment of the United
States Constitution regarding the standard applied to investigative detentions. Glover v. State, 870 S.W.2d 198, 199
n.1 (Tex. App.—Fort Worth 1994, pet. ref'd) (citing Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992)).
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496 U.S. at 329, 110 S. Ct. at 2415. In most instances, there must be some further indicia of
reliability from which a police officer may reasonably conclude that the tip is reliable and a
detention is justified. See id., 496 U.S. at 329, 110 S. Ct. 2415-16. Where the information has a
fairly low degree of reliability, more information will be required to establish the requisite level of
suspicion necessary to justify an investigative detention. Id., 496 U.S. at 330, 110 S. Ct. at 2416.
Corroboration by the law enforcement officer necessarily goes to the quality, or reliability, of the
information. State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.—Fort Worth 1995, pet. ref'd).
Where the reliability of the information is increased, less corroboration is necessary. White, 496
U.S. at 330, 110 S. Ct. at 2416. A detailed description of wrongdoing, along with a statement that
the event was observed firsthand, entitles an informant’s tip to greater weight than might otherwise
be the case. Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983).
Corroboration does not mean that the officer must personally observe the conduct that
causes him to reasonably suspect that a crime is being, has been, or is about to be committed.
Brother, 166 S.W.3d at 259 n.5 (citing Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921,
1924, 32 L. Ed. 2d 612 (1972)). Rather, corroboration refers to whether the police officer, in light
of the circumstances, confirms enough facts to reasonably conclude that the information given to
him is reliable and that an investigative detention is thus justified. Id. (citing White, 496 U.S. at
330-31). “To require officers who are apprised of detailed facts from citizen-eyewitnesses to
observe suspects and wait until additional suspicious acts are committed[ ] would be foolish and
contrary to the balance of interests struck in Terry and its progeny.” Id. at 259 (citing Terry, 392
U.S. at 29).
Discussion
Appellant argues that, without any traffic violation or other reasonable suspicion, the tip
provided to Officers Smith and Prew was without sufficient reliability to support his detention.
The tip in the instant case resulted from a phone call to the police. The caller provided her
name, a basic description of the complaint (a possible or impending fight), and several pieces of
identifying information. Particularly, the caller described a silver Ford F-150 pickup occupied by
two or three individuals at the Waffle Shoppe. When Officer Smith arrived, the parking lot was
sparsely populated, and only one vehicle, Appellant’s truck, matched the description provided by
the caller. The caller remained at the scene and was interviewed by Officer Smith while Officer
Prew interviewed Appellant. A short amount of time elapsed from the call until the time of the
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detention. Moreover, Officer Prew testified at the suppression hearing that the motorist was not
in the employ of the police, entitling the caller’s statements to more weight.
Officer Prew also testified at the hearing that on a fight or harassment call, officers will “try
and stop all parties involved and figure out what’s going on and continue the investigation from
there.” Officer Prew stated that he wanted to make sure “that there wasn’t going to be a fight or
any kind of assault or anything like that.” He implied that the only way to gain an appreciation of
the facts was to detain the vehicle matching the description and to speak to the occupants.
Under the totality of the circumstances then, we conclude that the officers possessed the
particularized reasonable suspicion necessary to detain Appellant. See Sbriglia v. State, No.
2-09-00294-CR, 2010 WL 2105886, at *3-4 (Tex. App.—Fort Worth May 20, 2010, no pet. h.)
(mem. op., not designated for publication); Ste-Marie v. State, 32 S.W.3d 446, 449 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (holding officer had reasonable suspicion to detain the
appellant to investigate breach of the peace when witness informed officer the appellant had yelled
a profanity at her ten-year-old daughter); Lesco v. State, No. 01-98-01168-CR, 1999 WL 343425,
at *1 (Tex. App.—Houston [1st Dist.] May 27, 1999, no pet.) (not designated for publication)
(affirming DWI conviction and holding officers had reasonable suspicion to detain defendant
when coffee shop patron reported two white males fighting with customers inside coffee shop and
officers saw two white males leaving parking lot in a car as the officers arrived).
Appellant disagrees, however, relying primarily on Swaffar v. State, 258 S.W.3d 254, 259
(Tex. App.—Fort Worth 2008, pet. ref’d). In Swaffar, the caller refused to provide her name, did
not remain on the scene until police arrived to identify the correct vehicle, did not make herself
available to be called to court, and did not identify the manufacturer of the vehicle. See id.
Appellant also cites Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). In Ford, the
court of criminal appeals held that the officer’s vague testimony that the defendant’s car followed
another vehicle too closely was, without more, insufficient to justify the detention. Id. The
court explained that the testimony, “following too close,” by itself, was not sufficiently specific to
show that the defendant “actually was, had been, or soon would have been engaged in criminal
activity.” Id. In the instant case, the police officers were told by the dispatcher that a fight was
imminent or in progress. As the officers arrived on the scene, they discovered a vehicle matching
the description attempting to leave the premises. The potentially violent nature of the possible
assault offense, coupled with the timing of the vehicle’s attempted departure from the scene,
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allowed the officers to temporarily detain Appellant’s truck to ascertain whether such an assault
had occurred or was in the process of occurring. Therefore, these cases are distinguishable from
the case at hand.
Finally, once he initiated the interview with Appellant, Officer Prew detected the odor of
alcohol, observed Appellant’s “red and glassy bloodshot eyes,” and noticed Appellant’s “slow,
slurred speech.” These observations gave Officer Prew reasonable suspicion to convert the
harassment/assault investigation into a DWI investigation. See Sieffert v. State, 290 S.W.3d 478,
483 (Tex. App.—Amarillo 2009, no pet.) (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim.
App. 1997)); see also State v. Priddy, __S.W.3d__, 2010 WL 1999520, at *5 (Tex. App.—Fort
Worth May 20, 2010, no pet. h.) (not yet released for publication).
The trial court did not abuse its discretion in denying Appellant’s motion to suppress. We
overrule Appellant’s sole issue.
DISPOSITION
We affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered July 21, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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