Affirmed and Memorandum Opinion filed September 22, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00560-CR

RUSSELL SINGLETON LEONARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1949831

M E M O R A N D U M O P I N I O N

Appellant Russell Singleton Leonard appeals his conviction for Class A 

misdemeanor driving while intoxicated. In three issues, appellant argues (1) the 

trial court erred in denying his motion to suppress evidence; (2) the trial court erred 

in submitting an erroneous instruction to the jury; and (3) the evidence is 

insufficient to support the conviction. We affirm. 
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BACKGROUND

Appellant’s sister called 911 and told the dispatcher that her brother was 

“out wandering around drunk.” Appellant’s sister wanted to take appellant to the 

emergency room, but did not believe the hospital would accept appellant if he was 

“combative.” The dispatcher transferred appellant’s sister to medical dispatch. 

When the medical dispatcher asked for the sister’s location, she said, “Oh no, he’s 

gonna drive.” When appellant drove away, the sister identified herself as Patty and 

gave the dispatcher her phone number. Patty told the dispatcher that she was trying 

to prevent her brother from “driving intoxicated.” When appellant began to drive, 

Patty gave the license plate number to the dispatcher. The medical dispatcher 

transferred Patty back to the police dispatcher. When Patty was transferred back to 

the police dispatcher, she was in her car following appellant. After again giving her 

name and phone number to the police dispatcher, Patty reported that her brother 

was driving intoxicated, and that she was in a separate car following him. The 

police dispatcher transferred Patty to the officer who would respond to the call. 

Patty identified the car as a white Challenger driving with the hazard lights on. 

Officer Araiza of the Houston Police Department testified that he responded 

to a 911 call about an intoxicated driver. Araiza saw the Challenger and Patty’s car 

following 20 to 25 feet behind. Patty pointed to appellant’s car, and said, “That’s 

the vehicle. That’s the vehicle.” Araiza verified the car’s description and license 

plate with the 911 dispatcher, and initiated a traffic stop. At the time Araiza 

initiated the traffic stop he knew that the 911 caller was chasing appellant because 

appellant had been drinking and was now driving. 

When Araiza approached appellant he began asking basic questions 

attendant to a traffic stop. As appellant answered Araiza detected the odor of 

alcohol on appellant’s breath. Araiza also noticed appellant’s eyes were extremely 
3

red and bloodshot. Appellant did not respond to Araiza’s questions in a normal 

manner, and Araiza saw an opened 30-pack of beer in the front passenger seat of 

appellant’s vehicle. One or two beers were missing from the package. Araiza also 

saw an open beer in the car. At Araiza’s request, appellant stepped out of the car. 

Appellant’s speech was slurred, and he was unable to stand without leaning on the 

car. Appellant said he had consumed two beers. Araiza tried to conduct field 

sobriety tests, but appellant was not responsive. Araiza contacted Sergeant Donato, 

who was more experienced with intoxicated drivers. Donato instructed Araiza to 

transport appellant to “Central Intox.”

Sergeant Donato testified that when he first came into contact with 

appellant, appellant exhibited signs of intoxication in that he smelled of alcohol, 

his speech was slurred, and his eyes were glassy. Donato attempted to administer 

the field sobriety tests, but appellant refused the first two tests because he was 

physically unable to complete them. Donato then asked appellant to perform a 

finger counting test and to recite portions of the alphabet forward and backward. 

Appellant failed the counting test, but passed the alphabet test. Donato also 

observed appellant lose his balance several times. A video of these tests was 

admitted into evidence and played for the jury. 

Donato administered two breathalyzer tests at 2:49 p.m., approximately one 

and a half hours after Araiza stopped appellant.1The tests produced evidence of 

alcohol concentrations of 0.216 and 0.217. The Department of Public Safety 

employee who testified about the test results stated that the employee did not have 

enough information to extrapolate an alcohol level at the time appellant was 

driving. 

 

1 Araiza testified that he stopped appellant at approximately 1:21 p.m.
4

SUFFICIENCY OF THE EVIDENCE

In his third issue, appellant argues the evidence is insufficient to support his 

conviction. Specifically, appellant contends the evidence is insufficient to prove 

that an analysis of his breath showed an alcohol concentration level of at least 0.15

at or near the time of the commission of the offense. 

When reviewing sufficiency of the evidence, we view all of the evidence in 

the light most favorable to the verdict and determine, based on that evidence and 

any reasonable inferences therefrom, whether any rational factfinder could have 

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 

318–19 (1979)). We do not sit as thirteenth juror and may not substitute our 

judgment for that of the factfinder by reevaluating the weight and credibility of the 

evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). 

We measure evidentiary sufficiency against the “elements of the offense as 

defined by the hypothetically correct jury charge for the case.” Fuller v. State, 73 

S.W.3d 250, 252 (Tex. Crim. App. 2002). That is, “one that accurately sets out the 

law, is authorized by the indictment, does not unnecessarily increase the State’s 

burden of proof or unnecessarily restrict the State’s theories of liability, and 

adequately describes the particular offense for which the defendant was tried.” 

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard 

“ensures that a judgment of acquittal is reserved for those situations in which there 

is an actual failure in the State’s proof of the crime rather than a mere error in the 

jury charge submitted.” Id.; Atkins v. State, 402 S.W.3d 453, 457 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d).

It is an offense in Texas to operate a motor vehicle while intoxicated in a 

public place. To establish a Class B misdemeanor, the State must prove the 
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defendant operated a motor vehicle while “intoxicated,” meaning either (1) not 

having the normal use of mental or physical faculties by reason of the introduction 

of alcohol, or (2) having an alcohol concentration of 0.08 or more. See Tex. Penal 

Code Ann. §§ 49.01(2), 49.04(a),(b). To establish a Class A misdemeanor, as here, 

the State must also prove the defendant had an alcohol concentration of over 0.15, 

determined at the time of the analysis rather than at the time of driving. Tex. Penal 

Code Ann. § 49.04(d) (providing that State must prove “an analysis of a specimen 

of the person’s blood, breath, or urine showed an alcohol concentration level of 

0.15 or more at the time the analysis was performed,” to elevate offense to Class A 

misdemeanor).

Therefore, we review whether the evidence was sufficient to show that 

appellant was intoxicated at the time of driving and whether appellant’s alcohol 

concentration level was 0.15 or more at the time the analysis was performed. See 

Tex. Penal Code Ann. § 49.04. 

Araiza testified that when he stopped appellant’s vehicle and began asking 

questions attendant to a traffic stop, Araiza noticed the odor of alcohol on 

appellant’s breath, and that appellant’s eyes were extremely red and bloodshot. 

Appellant’s speech was slurred and he was unable to stand without leaning on the 

car. Appellant was unable to perform Araiza’s requested field sobriety tests.

Approximately one and a half hours later, breathalyzer tests revealed alcohol 

concentrations of 0.216 and 0.217. Appellant argues the evidence was insufficient 

to prove that an analysis of his breath showed an alcohol concentration level of at 

least 0.15 at or near the time of the commission of the offense. As discussed above, 

under the hypothetically correct jury charge analysis, the State was not required to 

prove the alcohol concentration level at the time of the offense as appellant 

contends, but was required to prove the alcohol concentration at the time of the 
6

analysis. Because the evidence showed alcohol concentration of more than 0.15 at 

the time of the analysis, the evidence was sufficient to support the conviction. We 

overrule appellant’s third issue. 

MOTION TO SUPPRESS

In his first issue appellant argues the trial court erred in denying his motion 

to suppress the traffic stop based on a lack of reasonable suspicion. When the State 

introduced the 911 call into evidence, appellant objected on hearsay grounds. 

Appellant requested a hearing outside the presence of the jury and also moved to 

suppress the traffic stop based on the fact that the 911 call did not provide specific 

and articulable facts that, combined with rational inferences from those facts, led 

Araiza to reasonably conclude that at the time of the stop, appellant was, had been, 

or would soon be engaged in criminal activity. Appellant argued that Patty’s

comments that appellant was intoxicated were conclusory and could not support 

reasonable suspicion to stop appellant. The trial court denied appellant’s motion.

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.

2013). The trial court’s determinations of historical facts and mixed questions of 

law and fact that rely on credibility are granted almost total deference when 

supported by the record. Id. But when mixed questions of law and fact do not 

depend on the evaluation of credibility and demeanor, we review the trial court’s 

ruling de novo. Id. Whether the facts known to the officer at the time of the 

detention amount to reasonable suspicion is a mixed question of fact and law that 

is reviewed de novo on appeal. Id. When, as in this case, the trial judge does not 

make formal findings of fact, we uphold the trial court’s ruling on any theory of 

law applicable to the case and presume the court made implicit findings in support 

of its ruling if those findings are supported by the record. State v. Ross, 32 S.W.3d 
7

853, 855–56 (Tex. Crim. App. 2000).

Under the Fourth Amendment, a warrantless detention of a person that 

amounts to less than a full custodial arrest must be justified by a reasonable 

suspicion. Kerwick, 393 S.W.3d at 273. “[A] law enforcement officer’s reasonable 

suspicion that a person may be involved in criminal activity permits the officer to 

stop the person for a brief time and take additional steps to investigate further.” 

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004). Reasonable 

suspicion to detain a person exists if an officer has specific, articulable facts that, 

combined with rational inferences from those facts, would lead him or her to 

reasonably conclude that the person detained is, has been, or soon will be engaged 

in criminal activity. Kerwick, 393 S.W.3d at 273. These facts must show unusual 

activity, some evidence that connects the detainee to the unusual activity, and some 

indication that the unusual activity is related to crime, but the likelihood of 

criminal activity need not rise to the level required for probable cause to arrest. Id. 

at 273–74. The test for reasonable suspicion is an objective one that focuses solely 

on whether an objective basis exists for the detention and disregards the officer’s 

subjective intent. Id. at 274. A reasonable-suspicion determination must be based 

on the totality of the circumstances, and reasonable suspicion may exist even if the 

circumstances presented are as consistent with innocent activity as with criminal 

activity. Id; Terrell v. State, 473 S.W.3d 420, 423 (Tex. App.—Houston [14th 

Dist.] 2015, no pet.)

The detaining officer need not be personally aware of every fact that 

objectively supports a reasonable suspicion to detain; instead, the cumulative 

information known to cooperating officers at the time of the stop must be 

considered in determining whether reasonable suspicion exists. Derichsweiler v. 

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police dispatcher is 
8

generally regarded as a cooperating officer for purposes of this analysis. See id. 

Moreover, information provided to police by a citizen-informant who identifies 

herself and may be held to account for the accuracy and veracity of her report may 

be regarded as reliable. Id. at 914–15. The only question in that scenario is whether 

the information provided by the citizen—viewed through the prism of the detaining 

officer’s knowledge and experience—objectively supports a reasonable suspicion 

to believe that criminal activity is afoot. Id. at 915.

In this case, there is no question as to the reliability of the citizen informant. 

Appellant’s sister identified herself by name and gave her phone number to the 

police dispatcher. Patty’s report was based on first-hand perceptions, which she 

continuously reported to the 911 dispatcher and Araiza. Araiza was entitled to rely

on the objective information reported by Patty in making the investigative stop. See 

Derichsweiler, 348 S.W.3d at 915. Even if Araiza was not aware of all of the 

information given by Patty, the 911 dispatcher was. The issue here is whether the 

totality of the reliable information provided specific, articulable facts that, 

combined with reasonable inferences to be derived from those facts, would lead to 

the reasonable conclusion that appellant was committing some type of criminal 

activity.

Appellant relies on Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005),

for the court’s analysis about the unreliability of conclusory reports to police. In 

Ford, the detaining officer testified that he pulled the defendant over after 

observing the defendant following another vehicle “too closely.” Id. at 491. The 

officer explained that he believed the defendant had committed the traffic offense 

of “[f]ollowing too close.” Id.; see also Tex. Transp. Code § 545.062(a) 

(prescribing safe following distances for vehicles). The officer did not provide any 

specific information regarding conditions at the time of the stop beyond the time of 
9

day and did not offer any details regarding how closely the defendant was 

following the other vehicle. The trial court and the court of appeals held that the 

officer’s testimony was sufficient to support a reasonable suspicion justifying an 

investigative detention. Ford, 158 S.W.3d at 491–92. The court of appeals 

specifically reasoned that the officer’s training and experience qualified him to 

make a judgment regarding whether the defendant was violating the law by 

following the other vehicle too closely given the conditions present on the 

roadway. Id. The Court of Criminal Appeals reversed, however, holding that the 

officer’s testimony was conclusory and failed to offer specific, articulable facts 

that a court could use in assessing whether the officer’s opinion was objectively 

reasonable. Id. at 493–94. The Court acknowledged that an officer’s training and 

experience may factor into the analysis but stated that relying on those factors 

without objective factual support was inappropriate. Id.

Ford is distinguishable from the case before us. Unlike the officer in Ford, 

Araiza did not base reasonable suspicion to stop appellant solely on his training 

and experience. Araiza admitted he stopped appellant based on the 911 dispatch 

and Patty’s report that appellant was driving while intoxicated. Appellant argues 

that Patty’s “conclusory statement that Appellant was intoxicated was not an 

effective substitute for specific facts.” The 911 call in this case contained more 

than a simple statement that appellant was intoxicated. The call began with Patty’s 

plea for help getting her brother to a psychiatric hospital and a report that he was 

“out wandering around drunk.” Patty described appellant as combative and asked 

for medical help. Before Patty could confirm her location to the dispatcher, she 

said, “Oh no, he’s gonna drive.” At that time, the 911 dispatcher determined that 

the situation would be better handled by police, not medical personnel. Patty 

followed appellant in her vehicle and relayed information about appellant’s driving 
10

and location to the dispatcher and Araiza in real time. 

“Reasonable suspicion depends on ‘the factual and practical considerations 

of everyday life on which reasonable and prudent men, not legal technicians, act.’” 

Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 1690 (2014) (quoting 

Ornelas v. United States, 517 U.S. 690, 695 (1996)). In this case, Araiza was given 

more information than a simple statement that appellant was intoxicated. The 911 

call was made by a sister concerned for her brother’s welfare. She stated that she 

knew he was intoxicated and combative. Before getting in the car, appellant was 

“wandering around drunk.” Patty tried to prevent appellant from driving, but was 

unable to do so. Araiza also was told that appellant was driving with his hazard 

lights flashing. 

Considering the totality of the circumstances, we conclude that the record 

contains sufficient facts to support a finding that Araiza had a reasonable basis 

upon which to conclude that appellant was driving while intoxicated when he 

initiated the stop. See Brother v. State, 166 S.W.3d 255, 259–60 (Tex. Crim. App. 

2005) (officer had reasonable suspicion to stop driver when citizen gave a detailed 

description of suspect’s car, location, and erratic driving, and followed behind 

suspect assisting officer in identifying the proper vehicle). We overrule appellant’s 

first issue. 

JURY CHARGE

In his second issue appellant argues the trial court erred in submitting a jury 

charge that did not track the language of the statute. At the charge conference,

appellant’s counsel argued that under Navarro v. State, 469 S.W.3d 687 (Tex. 

App.—Houston [14th Dist.] 2015, pet. ref’d), the State was required to prove as an 

element of the offense that appellant’s blood alcohol level was 0.15 or higher. 

During the ensuing discussion, appellant insisted that the jury charge should read 
11

exactly as the information read, not the statute.

The information alleged that appellant, “on or about MARCH 10, 2014, did 

then and there unlawfully operate a motor vehicle in a public place while 

intoxicated.” The information further alleged that “at or near the time of the 

commission of the offense, an analysis of the Defendant’s BREATH showed an 

alcohol concentration of at least 0.15.” (emphasis added) Appellant was charged 

under section 49.04(d) of the Texas Penal Code, which provides, “If it is shown on 

the trial of an offense under this section that an analysis of a specimen of the 

person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or 

more at the time the analysis was performed, the offense is a Class A 

misdemeanor.” (emphasis added) Tex. Penal Code Ann. § 49.04(b). 

After a lengthy discussion on the jury charge with regard to the element of 

alcohol concentration of 0.15, the trial court recessed to permit an appellate 

attorney from the district attorney’s office to opine on the issue. The appellate 

attorney pointed out that the information in this case did not track the statute. The 

information referred to an alcohol concentration measured at the time of the 

offense. The statute requires proof of alcohol concentration above 0.15 at the time 

the analysis is performed. The State argued that the charge should track the 

language of the statute. Appellant objected to the court’s proposed charge, which 

tracked the language of the statute. After more research, the following exchange 

occurred between the appellate attorney from the State and appellant’s attorney:

MS. DAVIS [State]: So just to understand, Mr. Flood, you would 

have no objection if it trapped [sic] the language of the information of 

what the Judge said that it’s at or near the commission of the offense?

MR. FLOOD [defense counsel]: That’s what I’m requesting. Right.

MS. DAVIS: Okay.

MR. FLOOD: My objection is that it differs from the information that 
12

we were arraigned under.

MS. DAVIS: Okay. Based on kind of what I was reading as well as 

my phone-a-friend, Judge, I think that we’ll withdraw our proposal 

and we’ll accept Mr. Flood’s at or near the time of the commission of 

the offense but — and we also agree it should not be a special issue.

On appeal appellant complains that the trial court erred in submitting a 

charge that did not track the language of the statute. The record reflects, however, 

that appellant requested the erroneous charge. When a defendant requests a charge, 

and the court submits it, he cannot complain of that charge on appeal. Tucker v. 

State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988). Even if the charge is later 

found to be erroneous, the accused cannot first invite error and then complain 

about it on appeal. Id.; Ortiz v. State, 144 S.W.3d 225, 230 (Tex. App.—Houston 

[14th Dist.] 2004, pet. ref’d). Because appellant cannot take advantage of an error 

that he invited, we overrule appellant’s second issue.

We affirm the trial court’s judgment.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Boyce, Christopher, and Jamison.

Do Not Publish — Tex. R. App. P. 47.2(b).