## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 16 - 00382 - CR

JAMES LILLY APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 4 OF DENT ON COUNTY

TRIAL COURT NO. CR

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- 01012

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### MEMORANDUM OPINION 1

---------- In a single issue, Appellant James Li l ly cont ends that the trial court erred by denying his motion to suppress. Lil l y argues that Officer Adam Frederick lacked reasonable suspicion to initiate a stop of Li l ly’s truck

. We will affirm. As Officer Frederick patrolled Lewisville, Texas , at about 11:15 p.m. on August 9, 2015, he noticed a dark, older m odel truck with a hood scoop.

1 See Tex. R. App. P. 47.4.2

Believing that Lil l y’s t ruck matched a BOLO 2 alert issued for an older model, single

- cab truck with a hood scoop that was associated with a recent burglary of a coin

- ope rated machine, and noticing that Lilly ’s truck was about five minutes away from the reported site of the burg lary, Officer Frederick stopped Lilly ’s truck. Officer Frederick testified at the suppression hearing that it was the hood scoop that dre w his attention to Lilly’s truck; it was not a common feature , and the hood

- scoop feature had been specifically mentioned in the BOLO alert for a dark, older model truck connected with the burglary

. As Officer Frederick approached Lilly ’s truck, Lilly exited it. Offi cer Frederick immediately noticed that Lilly was unsteady on his feet, used the truck for balance, and had wa tery eyes and dilated pupils. As Lilly handed his driver’s license to Officer Frederick, Officer Frederick smelled the odo r of an alcoholic bevera ge. Based on these observations, Officer Frederick believed that Lilly could be intoxicated. Officer Frederick detained Lilly for investigation of the offense of DWI , and Officer Frederick called a DWI E nforcement Unit to the

scene. By this time, Office r Frederick had learned that Lilly ’s truck was not the truck involved in the nearby burglary of the coin

- operated machine. Ultimately, Officer Frederick arrested Lilly for the offense of DWI. We review a trial court’ s ruling on a motion to suppress evide nce under a bifurcated standard of review

. Amador v. State , 221 S.W.3d 666, 673 (Tex.

2 BOLO is an acronym for “be on the lookout .”3

Crim. App. 2007). 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); Bes t v. State , 118 S.W.3d 857, 861 (Tex. App.

— Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Wiede v. State , 214 S.W.3d 17, 24

– 25 (Tex. Crim. App. 2007); State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost tot al deference to the trial court’ s ruling s on (1) questions of historica l fact, even if the trial court’ s determination of those facts was not based on an evaluation of credibility a nd demeanor, and (2) application

- of

- law

- to
- fact questions that turn on an evaluation of credibility and demeanor. Amador , 221 S.W. 3 d at 673; Mont anez 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 witne sses, we review the trial c ourt’ s rulings on those questions de novo. Amador , 221 S.W.3d at 673; Johnson , 68 S.W.3d at 652

– 53. We are required to affirm a trial court’ s decision on a motion to suppress if it is correct under any theory of law applicable to the case, even if the tr ial court did not rely on that theory in making its ruling. State v. Copeland , 501 S.W.3d 610, 612

– 13 (Tex. Crim. App. 2016) ( citing Calloway v. State , 743 S.W.2d 645 (Tex. Crim. App. 1988)); Romero , 800 S.W. 2d at 543 ; Lewis v. State, 664 S.W.2d 345, 347 (Tex. Crim. App. 1984).4

A police officer has reasonable suspicion to detain a person if he has specific and articulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is , has been , or soon will be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1,
21

– 22, 88 S. Ct. 1868, 1880 (1968)

. Thus, if police possess a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted for the commission of a past crime, an investigative detention of that p erson does not run afoul of the Fourth Amendment. See United States v. Hensley , 469 U.S. 221, 232

– 33, 105 S. Ct. 675, 682 (1985) (holding that officer may detain suspe ct based upon police “wanted” bulletin to investigate ); Derichsweiler v. State, 348 S .W.3d 906, 914 (Tex. Crim. App. ) (explaining that reasonable suspicion to detain is determined based on cumulative information known to cooperating officers at the time of the stop and citing Hensley ) , cert. denied

, 565 U.S. 840 (2011) ; Isbell v. State , No. 02

- 14

- 00124

- CR, 2017 WL 3526339, at *6 (Tex. App.

— Fort Worth Aug. 17, 2017, no pet. h.) (mem. op. on remand and on reh’g, not designated for publication) (holding that “ [t] he State introduced evidence that Phillips attempted to stop the Jeep base d on the Azle Police Department’ s bulletin regarding the July 17 incident, which was a reasonable justification for the attempted stop”)

. Lilly asserts that Officer Frederick’s detention of him was unlawful because

“ [ t ] he officer’s actions amounted to a detention that was not ba sed on reasonable suspicion.” But when Officer Frederick stopped Lilly ’s truck, he did possess5

specific articulable facts (the BOLO alert ) supporting a s uspicion that because Lilly was driving a truck that was similar to the one described in the BOLO alert near the location where the burglary of a coin

- operated machine had occurred, Lilly was or had been engaged in criminal activity, specifically, burglar y of a coin

operated machine. See Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) ; see also Hensley , 469 U.S. at 232

– 33 , 105 S. Ct. at 682 ; Derichsweiler , 348 S.W.3d at 914 ; Isbell , 2017 WL 3526339, at *6 . We overrule Lilly ’s sole issue complain ing that Officer Frederick lacked reasonable suspicion to initiate the stop of Lilly’s truck. 3

3 Lilly does not assert that, after Officer Frederick stopped Lilly ’s truck , Officer Frederick lacked reasonable suspicion to contin ue the detention to investigate the offense of DWI. Lilly ’s sole issue is that Officer Frederick lacked suspicion to initiate the stop.6

Having overruled Lilly ’s sole issue, we affirm the trial court’s judgment. 4

/s/ Sue Walker SUE WALKER JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH Tex. R . App. P. 47.2(b) DELIVERED: September 28, 2017

4 Because we hold that the trial court’s denial of Lilly ’s motion to suppress was correct on the theory of law that Offi cer Frederick possessed reasonable suspicion to initiate the stop of Lilly ’s truck, we need not address the State’s contention , adopted by the trial court in its conclusions of law , that Officer Frederick’s stop of Lilly was a consensual encounter. See R o mero , 800 S.W.2d at 543 (requiring court of appeals to affirm trial court’s suppression ruling if it is correct under any theory); see also Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary to disposition of appeal).