Opinion issued June 29, 2023

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 22
- 00425
- CR

——————————— ANDRE SMALL , Appella nt

V. THE STATE OF TEXAS , Appe ll e e

On Appeal fro m the 338th Di s trict Court

Harris County, Texas Tria l C ourt Ca se No. 1575633

MEMORANDU M OPINION Appellant Andre Small was charged with F elon in P ossess ion of a F irearm. The charged offense was enhanced by allegations that Appellant previ o usl y had been convicted of the felony offense of possession of a cont r olled substance and the felony offense of theft. Prior to trial, the trial court heard and denied2

Appella nt ’ s motion to suppress evidence seized fro m his car at the tim e of his

arrest. A jury convicted Appellant of the unlawful p ossession charge , and he pleaded “ t rue ” to the enh anc e ment allegations. 1 The jury assessed Appellant ’ s punishment at twenty

- five years ’ confinement in the Correctional Instituti ons Division of the Texas Departme nt of C riminal Justice. Appellant f iled a timely notice of appeal.
In his firs t issue, Appellant a rgu es the trial co urt erred in admitting the

rec ording of a 911 call over his Confront ation Clause and hearsay o bjection s . In
his s econd issue, Appella nt ar gues the trial court erred in denying his motion to suppress evidenc e recovered during the search of hi s c ar b ecause the officers
lack ed rea sonable susp ic ion to justify his d ete ntion and arrest

. We affirm. Background
On Decem ber 31, 2017, the H o uston P olice Department ( “ HPD ” ) dispa tch
received a 911 call fro m a woman who believe d she was wi t ness ing a kidnapping. During the call, the woman , who ide ntified herself as “ C reshell, ” told the dispatc her she saw a man wh o appeared to be stu ffi ng someone in to his car ’s trunk
and that she saw “ legs kicking. ” After she was transfer red to a police ser g ea nt,
Cre shell told him it “ l ook [ed] lik e someone just pu t somebody in the trunk of their

1 Small previous ly was convicted of the felony offenses of a rson , possession of a controlled su bstanc e , and theft.3

car
. . . . The ir l egs were kicking. ” S he told him the car w as white and similar to an
old

- style police car with paper tags . She stated that bec ause of a left rear flat tire,
the man wa s d riving on its ri m. Creshell followed the man, who was drivin g erratica lly

. Once the car stopped, Creshell told the s e rgeant where to fi nd the car.
She r e m a ined at the scene until law enforcement arrived. T he suspect , later
iden t ified as Appellan t Andre Small ( “ Small ” ) , was detain ed and ultimately
arrested by police at the scene . The police found a large opaque bag in the trunk of the car, but no human body. Officers recove red a load ed .9 mm handgun in plain

v iew on the front pa s senger seat of the car. After taking Small into custody, the police ran a background ch eck on him and learned he was a con victed felon.
Small w as charged with f elon in p ossession of a f irearm

. 2 He pleaded not guilty. Prior to trial , the trial court c o nducted a h eari ng and denied Small ’ s Motio n

t o S uppress evi dence o f the gun that wa s rec overed from his car
. 3

2 Smal l also was charged w ith a ssault a gainst a p ublic s ervant and r etal iation. Those cha rges were dismissed.
3 The M otio n to Sup press sought to exclude evidence of Small ’ s arrest , any evidence related to the arr e st, te s timony by law enforceme nt about S mall ’ s act i on while in detention or under arrest, all written and o ral st atements Small made to any law enf

o rcemen t o ff

i cers in connection with this case and testi mony by law enforcement regarding such s tatem ents

. The only ma tter on appeal rela t es to t he d enial of the Motion to Suppress with respect to introduction of e viden c e r egarding the gun recovere d fr om Small ’ s car
.4

A. The Motion to Suppress Hearin g S mall ’ s Motion to Sup press requested that the trial court e xclude any statements obtained fr om Small , “ any tangi b le evide nce se ized in connec tion wi th this case, inc luding but not limited to Firearm, namely Smith & Wesson 9mm Lug er , ” and all evidence that “ relates to the arres t and , and any testimony by the
Housto n Police Departmen t or other law enforcement officers or other s c onc erning
any act ion of [Small] while in detention or under arrest in connection with this

c ase. ”
Three HPD officers testified during the hearing on the Motion to Su p p ress
. Excerpts of t wo of the officers ’ body

- worn camer a vid eos a n d Creshell ’ s 911 call were pla yed during the hearing.
1. Officer Preston
HPD Officer Wesley Prest on ( “ Officer Preston ” ) testifi ed that on Decemb er 31, 2017, he was dispatched to a “ suspicious vehicle, cit izen following ” call. The
911 ca ller rep o r ted “ o b se r ving a ma l e stuff a body into the tr u nk of a v ehicle. ”
Officer Preston kne w nothing about the caller or her reliability

. When he and his partner arrived at the scene and loc ated the car , on e patrol unit wa s already at the

s ce ne
. Whe n Officer P reston arrived, Small was not “ doin g a nything inappropriate

. ”5

Small w as told to ex it his car , keep h is h ands vis ible, face a way from the officer, and stop moving. Small initia lly followed the officer ’ s command . He got
out of his car and kept his h a n ds vi sible. But then he began to walk toward the
officer s
. Offic er Preston testified th at Sma ll was not aggre ssiv e and the officers
had not seen him d o anything wrong as of yet. However, Small disregarded the
officer ’ s command to stop walkin g and face a way from the officers

. Small tu rned and began t o walk away from the offi cer s toward his car. When Small dropped his
hands and was ordered to put his han ds back up, he did

. Sma l l seemed confused
about the comm ands.
Small was ordered not t o return to h i s ca r but he did so anyway

. Officer
Jose G o nzalez ( “ O fficer Gonzalez ” ) then grabbed Small to pr event him from getting in his car
. A t that point, the officers did n ot have personal knowledge th at

a c rime had been comm itted. O fficer P re s ton testified th a t Officer Gonzalez did not grab Small in a violent manner but a struggle ensued between the off icer and
Small , who allegedly struck Officer G onzalez

. By now, four offic ers were at the

s cene. All part ici pated in restrai ning Small until Officer Preston told th e m to let
him go, becau se it wa s easier for one person to subdue a suspect.
Small was handcuff

ed and arr ested for resi sting a l aw ful detention

. Officer
Pr eston testified that Small w as detained for a reported crimin al activity, but he acknowledged tha t h e had not seen Smal l do anything illegal and did not know6

whether the 911 caller had been truthful

. Off icer P r eston said no ne of the of ficers

s truck S mall as he was being han dcuffed and arrested

. A fter S m all was detained, the officers recovered a lo ad ed f i rearm in plain
view on the front passenger seat of the car and d rug paraphe rnalia

. Offi cer Pr eston

was no t s ure wh o s earched Small ’ s car first. He did not see Small put th e gun in
the front passenger seat and did not know who put the gun the re
. O fficer Preston

conce ded the officers did not find a human body in the trunk of the car, so the 911
caller was incorrect , an d t hat Small d id n ot hing wrong in hi s prese nce
. 4 He
testifi ed Small did not mak e any gestures such as tryi n g to grab a wea pon from h is car; rather, Sma ll got out of the car with his han ds up.
Officer Preston testi fied that when police believe so meone is being forcibly
restrained or that there is a dead body in a car , t h e officers follow the procedure for

a “ hig h risk or felony traffi c stop. ” During a felony traffic stop, the officers exit
their vehicles with wea pons drawn and p oin t ed at the occupant of the car at issue

. Officers give the car o ccup ant ver bal instru ctions to prevent him from escaping or
accessin g a wea p on from inside the car
. Officer Prest on testified that Small wo uld
have been detained r egardless of whe ther he had c omp lied with Officer P r esto n ’ s dem ands , because the 911 call er re ported a p otentially “ very violent and egregious felony. ” He test i fied that any person r eported to be involved in a kidnapping

4 Officer Preston ’ s body cam shows that police removed what appears to b e a duff el bag f rom the tru nk of Small ’ s car
.7

through a cal l , such as t he call made by Cres hell , would have been treate d t he same

as Small. The person would have been stopped by police with gun s drawn.
2. Officer Gon zalez
Offi cer Gonzalez t e stified that he and hi s partner, Officer Joseph Adova sio ( “ Off icer Ad ovas io ” ) , were the firs t to arrive at the sc ene. He w as cal led to the

s cene i n r esponse to a 911 call about “ somebody stuffing a body inside the back of
a trunk

. ” Small was the only oc c up ant of the car when t he police arrived. During the detention, O ffi cer Gonzalez and Officer Preston we re on opposite
sid es of Small ’ s car a nd h ad different v antage points

. Officer Gonzalez

approac hed Small because Small was not obe ying th e officers ’ commands

. Officer
Gonzale z told Small to raise his hands , but Small did not com ply

. Officer
Gon zalez grabbed Small , and when he attempted t o pull away, Officer G onzalez pushed S mall against the car to control his b ody , at which tim e Small struck the
officer

. Sma l l was put in han dcuffs and arreste d after he struck Officer Gonzalez.
Officer Gonzalez testifi ed he di d n ot see Small c o m mi t any crime prior to the
altercati on
. But o nce Sma ll w as on the ground, he was aggres siv e
. Officer Gonzalez testified he did not know who put the gun on the front

passenger seat of Small ’ s car
. T o Officer Gonzalez ’ s k nowledge , no o fficer put the8

handg un on the front passenger seat

. Officer G onzalez testified Small t old th e
p olice that the bullet in the loaded gun was for them. 5
Officer Gonzalez conceded that n o human body or blood w as found in the

ca r , so the 911 caller was wrong

. H e testified that said a ny person accused of having a body in hi s car would have been tre ated the s ame wa y Small was treated
d uring the detention and arrest

. 3. Of ficer Ad ovas io
Officer Adovasio testified that t h e contents of the 911 call were rel aye d to
h im and Officer G o nzalez t hroug h dispatch. Officer Adovas io testified he w a s the first pers on to come into cont act w ith Small ’ s car
. He approache d the car because
the re were reports of a human body in the trunk. He wanted to ma k e sure he did

not see “ blood or anything like that. ”
Officer Adov asio testified tha t w hen Small exited the car , he wa s aggressive.
The officers w ere already on high alert d ue to the nature of the 911 call. Small did
not comp ly with the offi cer s ’ orders after eme rging from the car

. O ffi cer Gonzalez

app roac hed Small to kee p hi m from returning to his car . W h en Officer Gonzalez approached Small to detain him , Small elbowed t h e officer in the face. There was
a strug gle, bu t Officer Adov asio d oes not reca ll Officer Gonzalez bei ng aggressive
with S m all

. He recalls that Small w a s the aggressor , and a s a result, the officers

5 See infra , not e 7

.9

“ took him to the ground

. ” Officer Adovasio could not r ecall whether he punched
Small in the body, althou gh he ac kno wled ged i t was possible , as S mall was on the

g round and they were trying to pull his arms out fro m underneath his waist

. Officer Adovasio testified that Small w a s no t beaten and punched while h e was in
handcuff s. Officer Adovasi o su bsequentl y reviewed his repor t, in which he stated
that he “ had to repeatedly hit [Small] in h is stomach an d in his ribs. ”
Small had t o be detained before they could investigate whether a human body was in the trun k of h is car

. Al though the officer s did not find a human body in the car, Officer Adovasio testified tha t Small assaulting a peac e officer was sufficient reason to a

rrest S m all. When Officer Adovasio approached Small ’ s car, he saw a gun o n the f

ront passenge r seat with t he barrel pointing toward the front
of th e car
. No one approached the p assenger side of t he car prior to Officer
Adovasio. W hen Off

icer Adovasio picked up the gun, he real ized i t w a s loaded.
Of ficer Adovasio did not see Small put the gun on the seat and d oes not know how
it got the re. The State argued that while there may be some disagreement as to the propriety of the “ ma nner and means ” by which Smal l was detain ed, the cr ux of the inquiry wa s w hether the officers had “ reasonable suspic io n t o believe that [Small]
had be en engage d in criminal activity ” and wh ether that was sufficient b asis “ for
them to cond uct an investigation

. ” The State argued officers made a felony traffic10

s top based on the 911 c all ab out a p otential kidnapping. A t t he time , there was no

reason for th em to believe that the stop or the basi s of the stop or the information

was unr e li able. Th e o fficers confirmed the iden tifying information abo ut the car
. The State argu ed that w hen officers respon d to a scene, they need t o be able to rely on information given by third parties , an d tha t these officer s had “ r easonable suspicion to detain [Small] a nd sear ch his veh icle fo r the crime s or evidence of the
crime. ”
Sma ll argued that while the officers had a r ight to detain S mal l , they did n ot
have the ri ght to arrest him be fore a weapon was fo und. Small claimed that the
officers would do what ever w a s n ecessary to justif y thei r stop. He a rgued that
b eca use he was illegally detained, evidenc e of the gun , the v ide o fo otage, and

“ a nything that is relating to this stop ” should be excluded pu rsuant to the Fourth
Amendment

. The trial court den ied Small ’ s Motion to Sup press.
B. Th e trial
T wo w itn esses

— Officers Preston and Ad ovasio

— te stified during the gui lt

inn ocen ce phase of tria l.
1. Officer Pre ston
O ffic er Preston testified that on December 31, 20 17, he was dispatched t o investig ate an allegation of kid napping. A fter the 911 cal l w as received, Officer s11

Adovasio and G o n zalez ar rived at the sc ene
. Off icer Preston was in the sec on d
unit that arri ved

. Officer Preston testifie d th at although he had never met the 911 caller , Creshell, before, he believed she was credi ble bec ause in hi s experience :
W h en it comes to repor tees f ollowing inc id ents that they obser ved, if they ’ re following for a very lon g amoun t of t ime, if they feel like they may per sona lly be in danger b y following this person, it kind of speaks t o t heir frame of mind as t o why they ’ re f ollowing. They ’ re ve ry muc h vested if th ey continue to follo w a person that they believe has com mitt e d an offense.
Officer P r eston cont inue d: In my experienc e , the fact that she was willing to continue to follow [the car] unti l law enfor cement made it on the scen e I thought spok e to her cre dibility at the time.
Cre shell remained at the scene until the s uspect was in custody.
Officer Pres ton testified that S mal l was the car ’ s sole occupan t

. Sma ll
exited the car s hortly af

t er the po lice arri ved and followed some of the officer s ’
commands

. Wh en they first arrived at the scene , the officers did not tel l Small why he w a s being detained , but all fou r officers had their guns dr awn and pointed
at h im

. Officer P r eston acknowledged that w hen Officer Gonzalez first grabb ed
Small , S m all had not done anything wr ong
. Off icer Preston pic k ed up Small and dropped him on his chest , but he testified h e did n ot observe any oth er officers hitting Small or beating him. He saw officers attempt ing to put Sm all ’ s ha n ds
behi nd his back and a taser being used by Officer Andrew Graff ( “ Of fice r Graff

” )

.12

Small was taser ed bec au se the offic ers were having a hard time co ntrolling Small
to handcuff him.
A fter Small was subdued , some of the o fficers b ega n to search his car

. Officer Preston testified about the

. 9 mm S m ith & Wes so n handgun Officer
Adova s i o found in Sm al l ’ s car
. Officer Preston testified that he did not see Small
with the gun or know how the gun got into the car b ut he knew it belonged to
Small because Sma ll sai d it was his gun. A f ter the officers found the gun , the

o ffi cers put Small in th e back of Offic er Go nzalez ’ s police veh icle.
O ff i cer Preston was wear ing a body camera that showed the interaction
b etween Small an d t he office rs. The jury saw the foo tage from the cam era
. After
det aining Sm all, t he officers r an a “ person check ” on Sma ll and learned he w as a convicted felon

. Officer P reston testified that a nyo ne would have been detained in
the same manner with guns drawn ba sed on Cresh ell ’ s 911 call

. 2. O fficer Ad ovas io
Off icer Ad ovas io testified that w hen he approached Small ’ s car , he saw the
911 caller parked o n the side of th e road, where she remain e d until the officers
were done

. He sa id he had never inte r acted with the 911 caller before . Off icer
Adovasio testified that all 911 calls are taken seriously. Officer Adovasio and his p artner , Officer Go nzalez, were the first to arrive

at the scene. Officer Ad o vasio wa s wea ring a bod y
- wor n camera, the footage of13

whic h w as shown to the jur y
. Where as a regular traffic stop w o uld be made in
response to something like a broken tai l light or a m i nor traffic v iolation, Officer
Adovasio testified this was a felony stop with a “ pos s i ble kidnapping. ” The
officers di d not recover a hum an body f r o m the suspect ’ s car
. Officer Adovasio test ified that when he arrived at the scene, he did not see
Small do anything w rong. 6 S m all was just sitting i n his car and emerged from the

car when t h e pol ice arri ved and told him to ge t o ut of the car

. Sma ll compli ed with
the in itial command to put his hands up. But when Small began walking bac k
toward his car , the police becam e conce rned because they d id not know what w as in the car
. When Officer Gon z a l ez attempted to de tain Smal l , Small struck Officer
Gonzalez in the fac e, causing him to bleed. The other officers responded by helping Offic er Gonzalez “ get the defendant detai ned. ” Officer Adovasio te stified
Officer G onzalez was not agg ressive until h e was struck in the fa ce. Small was on the gro und t elling t he officers to handcuff him, but he was

act ively fighting the m
. So Of ficer Adov asio deliver ed “ multipl e st rikes to hi s ribs

an d back just to get h im to comply because he was still active l y fight in g us d espite what he was saying. ” Small was also tased.
Officer Graff checked the trunk of the car for a human body. Off icer
Ad ovasio check e d the interior of th e car to ma k e sure the re was no sign of a

6 This conflicts with his testimony during the suppressio n hear ing that Small was

“ aggressive ” when he e x ited his car.14

kidnapping i n t he car. The passenger
- si d e w indo w was open an d when he leaned into the car, Of

ficer Adovasio saw “ a firearm sitting in plai n view on t he [front]

passenger seat. ” Officer Ad ovasio said, “ We have a gun. ” Small r esp onded ,

“ Yeah, I got a gun
. ” O fficer Ado vasio c leared the g un to make sure t here was no

ro und inside the chambe r
. Wh ile doing that , a roun d came o ut o f the cham ber, meaning the gun was loaded. When the police men tioned the lo aded gun , Small said, “ T hat one ’ s for y ’ all

. ” 7 Officer Ad ova sio did not see Small put the gun on the

s e a t.
Officer Adovasio testified he believed Creshell, the 911 caller, was credible even though he had never talked to her before and he did not have any data as to
whether sh e was truthful

. Although he had believed that a crime had occurred when the officers stopped Small , Officer Adovasio a c knowledg ed that no crime
had occurred and Small did not commit a crime in the officers’ presence. Officer
Adovasio testified that a ny s uspect involved in a felony traffic stop would have
been treated the s ame as Small

. The defense did not pr esent any witnesses during t h e guilt

- innocen c e ph ase of trial and no witnesses t estified during the punishment phase

. The jur y convicted
Small of th e unlawful possession charge and he pleaded “ true ” to the enhancement

7 The video from the officer ’ s body

- worn camera ref lects that Small said about t h e loaded gu n , “ A loaded gun?

. . . You sure right. F or you, motherfucker

. . . . If I got a loaded m other fuckin g gun , t hat ’ s for you m otherfuckers

. ”15

allegations. The jury assessed Small ’ s punishment at twen ty

- five ye ars ’
confi nement in the Correc tional Institutions Division o f the Texas Department of Criminal Justice. This appeal e nsued.
In two issue s , S mall argues the trial co urt erred in (1) admitting the

rec ording of the 911 call over his Confront ation C lause and hearsay ob jection s , and (2) de nying his motion to su ppress e v idence reco vered during the search of h i s car b ecause the officers lack ed rea sonable susp ic ion to justify his d ete ntion and arrest

. D iscussion
A
. S tandard of Review a nd Applicable L aw 1. Motion to Exclude Evidence In most circumstances, w e review a trial c ourt ’ s decision to admit or exclude
evidence under an abu se of discretion standard

. Henley v. S tat e , 493 S.W.3d 77,
82

– 83 (Tex. Crim. App. 2016 ); Zuliani v. State , 97 S.W.3d 589, 595 ( Tex. Crim. App. 2003)

. A trial court abuses its discretion when its d ecision falls outside the zone of reasonable disagreement

. Henley , 493 S.W.3d at 83; see also T ayl or v.
State , 268 S.W.3d 571, 579 (Tex. Crim. Ap p. 2008) (stating tr ial court abuses its discretion only if its decision is “so clearly wrong as to lie outs i d e the zone within which reasonable people might disagree” ). However , we review de novo the tria l

c ourt ’ s ruling that the admission of the 911 cal l did not violate Sm all ’ s rights under

t he Con fro ntation Clause. Wall v. State , 184 S

. W

. 3d 730, 7 4 2 (Tex. C r i m. App

.16

2006) ; Cook v. State , 199 S. W.3d 495, 497 (Tex. A pp.

— Houston [1st Dist.] 2006, no pet.)

. The C onfr ont ation Clause provides that the accu sed has the right to be
confronted with the witnesses against him in a criminal trial. U.S

. C ONST

. a mend

. V I . The Con frontat ion Clau se bars out

- of

- court testimon ial st atements unless th e witness is unav ail able to testify at trial and the defendant had the opportunity to

c ross
- examine him. R amjattansingh v. State , 587 S.W.3d 141, 159 (Tex. App.

— Houston [1st D i st.] 2019, no pet.) (citin g Martinez v. State , 327 S.W.3d 7 27 , 738 (Tex. Crim. App. 2010) (citin g C rawford v. Washington , 541 U.S. 36, 68 (2004)).
Once a defendant a sserts a Confrontati on Clause objection, the State bears the
burden to demonstrate (1 ) th a t the evidence does not contain testimonial hearsay

stateme nts , or (2) it if d oes, th at th e testim onial hearsay statements are admissible
nonethel ess
. Gutierrez v. S tate , 516 S.W.3d 593 , 597 (Tex. App.

— Houston [1st Dist.] 2017, pet. ref ’d) (citing De L a Paz v. State , 273 S.W.3d 671, 681

- 82 (Tex. Crim. App. 2008) ).
There is no explicit definition of “ t esti monial. ” See Wall , 184 S

. W

. 3d at
734

. Generally, a statem ent is testi monial “ if a reasonable person would have
understood that law enforcement of f i cers were cond uct ing a criminal i nvestigation
and collectin g ev idence for the purpose of prosec uti on. ” Ramjattansin gh , 587
S.W.3d at 159

. Conver sely, a statement is no ntestimon ial when “ the primary17

purpose of the interrogation is to en able police assis t a nce to meet an o ngoi ng

emer gency. ” Davis v. Washington , 54 7 U.S. 813, 822 (2006 )

. S t atements made during a 911 call whose primar y purpose is “to enable p olice assistance for an ongoing emergency ” are not considered tes ti m onial. Ramjattansin gh , 587 S.W

. 3 d

at 159 (citing Cook , 199 S. W.3d at 497

– 98 ) ; see also Davi s , 547 U.S. at 822

. The
Con front ation Clause does not require the e xclusion of non

- test imonial statements. Ramjattansin gh , 587 S.W.3d at 159 ; Sanchez v. State , 354 S.W.3d 476, 485 (Tex.
Cri m. A p p
. 2011).
W hether a given statement is testimonial is a qu estion of law. Langham v.
State , 305 S.W.3d 568, 576 (Tex. Crim. Ap p. 2010)

. In our re view, we defer to th e trial court ’s “resolution of credibility issues and historical fact. ” Id. W e co nsi d e r whether “the surrounding circumstances objectively indicat e that the primary purpose of the intervie w or interrogation is to e stablish or prove pa st events potentiall y relevant to later criminal prosecution.” Id. ( quot ing De La Paz , 2 73
S. W.3 d at 680 )

. 8

8 Smal l asserts the trial court erred in admitting the 911 ca ll over his “ he arsay and C o nfrontation ob

jection

. ” To the e xtent Small attem pts to assert separate hearsay and Confrontation Clause objections, w e note t hat he arsay and C o nfront ation Clause a rguments a re dis tinct issues , gover n ed by different standards of review. H e ars ay challenges to a trial c ourt ’ s admission of evidence are rev iewed for ab use o f discretion , wh ile, as noted, whether a statement is test im onial or non
testi monial under the C on frontatio n Clause is reviewed de no vo. Infante v. State , 404 S.W.3d 656, 66 2 ( Tex. App.

— Houston [1st Dis t.] 2012, no pet.) (citing Wall
v. S tate , 184 S.W.3d 730, 742

– 43 (Tex. Crim. App. 2006 ) )

. As briefed, Small ’ s18

The admission of a testimonial statement in violation of t he Confrontation
Clause is subject to a constitutional harm analysis under Rule of Appellate Procedure 44.2(a). See T EX

. R. A PP

. P

. 44.2(a) (“If the appellat e r e c o rd in a
criminal case reveals constitutio nal error that is subject to harmless error review, the court of appeals must reverse a judgment of convic tion or punishment u nless the court determines beyond a reasonable doubt that the error did not contrib ute t o the conviction or punishment.”); see also Wal l , 184 S.W.3d at 746 (noting that if
there is reasonable likelihood that error ma terially affected ju ry ’ s deliberations, then error is not harmless beyond reasonable doubt) ; Langham , 305 S.W.3d at 5 82 ( no tin g t hat constitutional harm analysis applies to violations of Confrontation
C lause)

. In such a harm analysis, “ the question for th e reviewing court is not whether the jur y verdict was supported by the evidence. Instead, the question is
the likelihood t hat t h e constitutional error was actually a contributing factor in the jury ’ s deliberations in arr iving at that verdict

— whether, in o ther words, the erro r adversely affected ‘ the integrity of the process leading to the conviction. ’ ” Sc ott v.
State , 227 S. W.3 d 6 70 , 690 (Tex. Crim. App

. 2007) (citation omitted )

. 2. Motion to Suppress
We revi ew a trial cou r t ’ s ruling on a motion to suppress un der a b ifurcated
standard of review. Sta te v. R u i z , 577 S.W. 3d 543, 545 (Tex. Crim. App. 2019) ;
fi r st is sue is solely a Confr ontation Claus e issu e that turns on whether the 9 11 call was testimonial or non

- testimonia l.19

Sta t e v. Martinez , 570 S.W.3d 278, 281 (Tex

. Crim. App. 2019) . Under the
bi furcated standard, we give the trial court “ al most co mp l ete deferen ce ” in its
determination of h istorical fa cts, especially if based o n a n assessmen t of demeanor
and credibilit y, and th e same defe rence i s afforded th e trial c ourt for its rulings on application of law to questions of fact and to mixed q uest ion s of law and f act, if
resolution of those questions de pends on an evaluation of dem eanor and

c re dibility. Id. (citing Crain v. State , 3 15 S.W.3d 43, 48 (Tex. Cri m. App. 2010) )

. We review question s of law de nov o. Id. F or mixed questions o f law and fact , our review is also de novo. Id.
“We view the record in the light most favo rab le to the tria l court ’ s r uling
and uphold the ruling if it is supported by the record and is corr ect u nder any

t heory of the law app li cabl e to the cas e.” Ruiz , 577 S. W.3d at 54 5 ; Balderas v.
State , 6 29 S. W.3d 610, 613

– 1 4 (Tex. App.

— Ho us ton [1 st Dist.] 2021, no pet.)

. When a trial court denies a motion to suppress and does not ente r findings of fact,
“t he ev idence is vi ewed ‘in t h e light mo st favorable to th e trial cour t ’ s ruling’ and
we ‘assume that the t rial court made implicit findi ng s of f act that s upport i ts ruling as long as those findings are supported by the record.’ ” Herrera v
. State , 241
S.W.3d 520, 527 (Tex. Crim. A pp. 2 007) (quo ting State v. Ross , 32 S.W.3d 853,
855 (Tex

. Crim. App. 2000) ).20

A p ol ice officer may tempor a rily detain a person for inves tigative purposes

“ if the officer reasonab ly suspects that the detained perso n is c onnected wit h a
crim e. ” Pate v. State , 518 S.W. 3d 911, 914 (Tex. App.

— Houston [1 st Dist.] 2017, pet. ref’d) (ci tin g Terry v. Ohi o , 392 U.S. 1 , 22 (1968); Wade v. State , 422 S.W.3d 661, 669 (Tex. Crim. App. 2013) )

. Reasonable suspic io n exists “ whe n a p olice
officer has a particularized and objective basis for suspecting the particular person stopped of criminal ac tiv it y. ” Pate , 518 S.W.3d at 9 1 4 ( citing Navarette v. Cal ifornia , 572 U.S. 393 , 396 (2014) )

. Courts determine if reas onabl e suspicion

e xists by viewing the to talit y of the circumstances objecti v ely

. Id.
Whether reasonable suspicion exists “ is dependent upon both the c ont ent of
infor m a tion possessed by police and its degree of r eliability.” Navarette , 572 U.S.
at 397 ( quoti n g Alabama v. White , 496 U.S. 325, 330 (1 990)). “ The detaining officer need not personally be aware of every fact th at supports a reasonable suspicio n t o d etain be c au se the content of the information possessed by the police includes the totality of the inf or mation known collect ively to the coopera ting pe ace officers, including dispatchers. ” Pate , 518 S.W

. 3d at 914 (citing Derichsweiler v.
State , 348 S. W.3 d 9 06, 915 (Te x. Crim. App. 2011) (explaining that dispatc her is regarded as “cooperating officer” f or pur poses of determining reasona b le suspicio n) )

.21

A stop may be justified “ if the facts underlying the s top are observed by a
civilian informa nt. ” Pate , 518 S.W

. 3d at 914 (citing Navar e tte , 572 U.S at 397

– 98 ) . Courts have identified several indicia of relia bility regarding t ips from a
citizen i nformant

. For exampl e, c o ur ts consider an informant who is not c onnected with the police “ inherently trustworthy when advising t he police of s usp e cted criminal activity. ” Id. ; Taflinger v. State , 414 S.W.3d 881, 885 ( Tex. App

. — Houston [1 st Dist. ] 2013, no p et.). In addition , a n informant may be treated as
more reliab le if s he provides a firsthand account and a d eta iled descr ipti on of wrongdoing. Pate , 518 S.W

. 3d at 914 ; Hawes v. State , 125 S.W.3 d 535, 539 (Tex. App.

— Houston [1st Dist.] 2002, no pet.); see also Navarette , 572 U.S

. at 399 ( observing that contemporaneou s eyewitness reports of suspected criminal activity have “long been tre ate d as es p ec iall y reliable”) ; Pipkin v. State , 114 S.W.3d 64 9,
65 5 (Tex. App.

— Fort Worth 2003, no pet. ) (ho lding traffic stop w as justif i ed
because caller was disinterested priv ate cit izen who gave detailed description of
suspect ’s car and location and ma de himself ac coun table for intervention by providing contact information to dispatc her)

. If we find the tr ial court erred in d eny ing a motion to suppress , we must
conduct a harm analy sis to determine whether the e rror calls for reversal of the judgment

. Gibson v. St ate , 253 S.W.3 d 709, 716

– 17 (Tex. App.

— Amarillo 2007, pet. ref’d)

. Th e question is whether the trial court ’ s d enial of the motion to22

suppress and the admission of the evid ence were harmless beyond a reasonable
doubt. See i d. (citing William s v
. State , 9 58 S.W.2d 186, 194 (Tex. Crim. App. 1997) )

. When we apply the “harmless error” test, we con s i der “ whether there is a

‘ reasonable pos sibility ’ that the error might have contr ibuted to the conviction. ”
Id. ( citing Mosley v. State , 983 S.W.2d 2 49, 259 (Tex

. C rim. App. 1998) ).
B. A nalysis
1. A dm itting the 911 Call Small argues i n h is first issue tha t th e trial court erre d in admitting the

recor ding of the 911 call over his hearsay and C on f rontation C l ause object ions
because the caller was c a l m, any pot ent ial emerg e nc y was not he r s , and the call

wa s made in anticipation of investi gat ion and litigation. Duri ng t rial, the State
offe red the 911 call and Smal l a sserted hearsay and Co n fr ontation Clause objections:
Pink: 9 [T]hat 911 tap e is not ad missible because I didn ’ t h ave a

chance to cross

- examine and con fr ont the la dy that

– who ’ s act ua l ly w it nessed this thin g an d actually show that her perception of what actual l y happened did not cor respond

.

. . . Koutani: 10 So, first and foremost, the e xce ption to the rule again s t

h earsay would be the business record aff idavit tha t we tendered for thi s i tem

. Now, one of the k nown

9 Clement Pi nk represente d Small at t rial.
10 M aroun Khout ani was the St ate ’ s prosecutor during trial.23 exceptions that ’ s been established by the Supreme Court to conf ront a tion clause issu es is an ongoing emergency when it ’ s bein g r ecorded for anything

– f o r the non

primary purpose of a criminal i nvestigati on or prosecution. I n t his situation the repor tee follows the defe ndant and reports the ongo i ng emergency and makes rem arks, like, Oh, my God. I hope they ’ re okay. I hope the pe rson in the back of the t ru nk is okay. So I think th a t the except ion to hea rsay is met throug h p urp ose s of the [busin ess r ecord affidavit] and then the confront ation issue, the exception of the o ngoing emergency applies to this situation.
Pink:

. . . The confrontation clause g i v es me a right to cross

examine her visual , her perc eption on why did s he co me to this conclus ion. You can’ t just have someone say, Oh, it ’ s a body. I t ’ s this, and allow that in through a witness that ’ s

– that doesn ’ t have any kno wledge of it.
The Cou r t : I ’ ll overrule. Do you have your busine ss record s

affidavi t?
Kou tan i: Abs olutely, yes, m a ’ am. The Court: Overrule the objections right now. I want the business

repor ts [sic] affidav it. If you do have that, let ’ s go that r out e first and then go fro m th ere. As of right now, I ’ m going to ove rrule the objection. 11
To d ete rmine whe ther the admission of a 911 call violate d Small ’ s rights
under the Con f

ro ntation Claus e, w e must first determine wheth er the st ate ments in
the call were testimonial. See Dav i s , 547 U.S. at 822 ; Vinson v. State , 252 S.W.3d 336, 3 38

– 39 (Tex. Cri m. App. 2008)

. As noted, st atements made during a 911 call

11 Small does not appeal the adm i ssion of the busines s record affidavit. Small ’ s first a rgument i s based s olely on the determination of wh eth er the 911 call was testimonial or n on
- testimoni al.24

“under circumstanc es objectively showing t hat the primary purpose of the call was

to e na b le police assistance for an ongoing e m erg enc y ” are n o t testimonial. Ramjatt ansingh , 587 S

. W.3 d at 1 59 (cit ing Cook , 199 S.W.3d at 497

– 98 ) (relying

on Davis , 547 U.S. at 822

– 23 ) ) ; see also Kinn ett v. State , 62 3 S.W.3d 876, 909 (Tex. A pp
. —

Houston [1st Dist.] 2020, pet. ref’d) ( “S ta tem ents m ade d uring 911
calls ar e typically consid e red nontestimonial b ecause they ar e ‘ a c ry for help ’ or

‘ the provision of information enabling officers immediately t o end a threaten ing
situation. ’ ”) (citing Davis , 547 U.S. at 832)

. In D av i s , the Uni ted States Sup r eme Court cla r if ied th e defi nition of

“ testimonial ” for Confrontation Cl ause purposes: Wit hout attempting to p roduce an exhaustive classification of all conceivable statem ents

— or even all conceivable statements in response to po li c e interrogation

— as eithe r testimonial or non tes timoni al, it suffices to deci de the present cas e s to hold as foll ows : Statements are non testimonial when made in the course of police interrogation u nder circumstanc es objectively indicating that the primar y p urpose of the interrogat i on is to enable pol ice assis tance to meet an ongoin g emergency. They a re testimonial wh en the circumstances ob

jectively indicate that there is no such ongoing emergency, a nd that the prim ary purpose of the interrogation is to es ta b lish or prove past event s potentially releva nt to lat er criminal prosecution

. 547 U.S. at 813

- 14

. The Court enumerated fou r factors to con sider in determin ing
whether a statement is testimonial : ( 1) the ca ller spoke about events as they took place, rather th a n describing past e v ents; (2) the caller req ues ted as sistance for an ongoing emergency, r ath er than providing a nar rative report of cri me25

absent imminent danger; (3) the operator ’ s questions and the caller ’ s answ ers were necessary to resolve a present e me r gency, rather than t o learn of past events; and (4) t he frantic nature of th e call and th e i ssu e of safety dominate d over a sense of fo rmal information gathering. Ramjattansingh , 587 S.W

. 3d at 160 (citing Davis , 547 U.S . at 827 )

. In Da vis , which involved a 911 call made by a vict im of domestic vio l ence, t he Court
concluded the 911 call was n ot testimo nia l beca use the call e r was “see king aid, not
telli ng a story about the past. ” 547 U.S . at 831. Small argues that Creshell ’s 911 call was testimonial

. He speculates with out citation to any authority that the li kel ihood of an ongoing kidnappin g e mergency

“ was g re atly di mi ni shed by the descrip tion of [Small ’ s ] reckless dr iving a nd by the
fact t hat he stopped at a bar. Someone with a kidnap victim or dead body in their

car sur e ly would not draw attention to them se lve s by dr iving on the rim of hi s t i re ,

swe rving, an d driving on to the med ian of a busy road in t he late evening of N ew
Ye ar ’ s Eve wh en l aw en forcement would be on the alert for drunk drivers. ” Small
also argues that Creshell “ did not se em ex cit ed

— she told the dispatcher she was

ne rvou s b ut there w a s no tremor in her vo ice an d her tone was even. ” When the
officers arrived at the scene , Creshell told the officer to whom the dispatcher26

transferred her , “ I know there was a person getting in the trunk , ” a nd , “ P lease let
them b e O.K , ” but s he s p oke “ calmly , ” during the call, according to Sma ll

. 12
Small re lies on Hereford v. Stat e , 444 S.W

. 3d 346 (Tex. A p p.

— Amarillo 2014, no pet.) in suppor t of his argument that Creshell ’s statement was tes timonial.
In He r eford , an anonymous 911 c a ll er repo rte d that someone named Anthony
Here ford was “ dealin g narcotics ” at a sp eci fic hotel

. Id. at 349. Ne ither the call nor a transcript w as in cluded in the appellate record, and it was unclear to the court of appeals when the ca ll was made

. Id

. at 349, 3 5 1. H ereford obje cted to the
admissio n o f evidence of the 911 c all as hearsay and v iolative of his right s under
the Con fro ntation Clause. Id. at 349. T he co u r t of appeals held that the

anonymous 911 call was testimonial, as there was an “ absence of any i nd ic i a suggesting the presence of some e merge n cy , ” and the purpose of the call w a s to
devel op “ a fac t ual pr edicate for late r li tig ation ” or to inve stigate a crime. Id. at
352.
Small identifies one discreet sentence in H ereford in support of his
argument: “ On e cannot reasonably inf er
. . . that the c al ler was seekin g help or

was o therwise facin g some im medi ate threat to his o r he r s afety or well

- bei ng. ” Id. We do not interpret that sentence so narrowly as to require any non

- testimonial 911

12 A review of th e subm itted audio recording reveals that while her voice was “ even ” during mo st of the call , Creshell sounded agitated a t times , and s he h ad to be told repe atedly to answer the officer ’ s and dispatcher ’ s question s
.27

call to be ab o ut d a nger to the caller, as o ppos ed to imm edi ate danger to someone else or the public at large

. Inde ed , ca selaw say s otherwise

. See , e .g., Michig an v. Bryant , 562 U.S. 344, 363 (2011) (noting that “ whether an emergency exists and is ongoing is a highly c on te x t

- dependent inquiry ” and discussing ongo ing

emergen cies “that t hreat en [] the police and public ” ) ; Ram jattansingh , 587 S.W .3d
at 16 1 ( holdi ng 911 caller ’s “ report of a drunk driver on the road concerned the sort of ongoing emergency likely to render s t a tem ents made in connec tion wi th it

non
- t est imonial. ” ); Kearney v. State , 181 S.W.3d 438, 442 (Te x. App

. — Waco 2005, pet. re f’d) (holding 911 ca lls “ are not given in response to structured police questioning or with an eye to [ ] future legal proceedings b u t ar e initiated by a
vi ctim or witness to ob tain police ass istance ”) (emphasis added) ; Guzman v. St ate , No. 02

- 18

- 00332

- CR, 2019 WL 2223213, at * 2 , 4 (Tex. App.

— Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication) (holding trial c o ur t
d id not abuse its discretion in admitting 91 1 call made by caller who “he ard someone get shot and ha d s een a guy run out of a neighbor ing ap ar t ment with a

g un ”) ; Sissel v. State , No. 03

- 19

- 00225

- CR, 2021 WL 1112906, at *1 , 7 (Tex. App.

— Austin Mar. 24, 20 21, n o pet.) (mem. op., not designated for pub lic ation) (holding 911 call made by mother whose dau ghte r hear d dis t urba nce at nei ghbor ’s
apartment wa s non
- testimonial and defendant ’s Con fro nt ation Clause rights w ere not violated by admission o f the call)

.28

M ore o v er, Hereford is inapposite

. First, there wa s no indication who made
the 911 call or when it was made , and the ca ll itself was not in evide nce at tria l

. 444 S .W.3d at 3 49 , 351

. The only evidenc e in Hereford was testimony by the
officers about wha t t hey were told of the call. Id. at 351. Second, the call, wh ich reported a “ specific person selling d rugs at a specific location ” w a s merel y the

“ r eportin g [of

] the occurrence of a crime, which crime t he officers were subsequently dispatched to investi g at e , ” without “ any indicia sug gesting the presence of s ome e mer gency. ” Id. at 35 1

– 52. In the present ca se, there was indi c ia of an e mergency

— a purported kidnapping

. And a n analysis of the Davi s factors indicat es the 911 call was not testimonial. First, Cr esh ell d escr ibed events as they took plac e and she fo llo wed
Small ’ s car , which she believed contained a body i n the trun k , during the 9 1 1 call.
Secon d, she requested assistance for wh at she p ercei ved to be an ongoing

emergenc y. Third, th e 911 dispatch op era tor and the officer to whom she was

t ransferred asked Creshell questions, the ans we rs to which were necessary to
resolve the p resent emergen cy of a potential active kidna pping . Fourth, while not

“ frantic, ” Creshell ’ s statement s during the call reflect tha t the issue of sa f ety
d ominated over the issue of information gathering. S he told the dispatch er, “ It looks like someone just put somebody in the trunk of their car , ” “ I ’ m scared to get up close, ” “ Oh m y God, ” “ I w a s passing by and I see somebody’ s leg s k icking and29

he w a s trying to pu sh t hem up into th e trunk , ” “I know th ere was a person that was
gett i ng in the trunk, ” and “P lease let them b e O .K. ”
This Court used the Davis analysis i n Ramjattansingh

. I n Ra mjattansingh , a
tow truck driver ( “ Wilso n ” ) c all ed 911 and re port e d he was following a “ drunk
driver ” who w a s “ a ll o ver the road ” and had nearly ca used several accidents . 587
S.W

. 3d at 14 7. Wilso n described the vehicle t o the 911 operator and gave t he
li cense plate number. Id. Soon after th e call , t he driver who Wil s on w as following pulled off the road into a p ub l ic par king lot. Id. Wilson agre ed to stay in the

pa rki ng lot with his li ghts flashing until law enforcement ar rived. Id. The d river

conte n ded the trial court violated his Confron tatio n C lause r ights by a l lowi n g the jury to listen to a re cording of W i ls on ’ s 9 11 call

. Id. at 159. Apply ing the Davis factors, we held the 911 ca ll was not t estimonial. Rather, the c all was made “ mai nly to enab le a police response t o an ongoing

emergen cy. ” Id

. at 160. Wilson r equ e sted police assistance to deal with the d riv er wh o was on the road; W i lson t old the dispatcher the make, model, color, and plate

n umber of the driver ’ s car; and W i lson pu lled in to a parkin g lot after the driver and
told authoritie s h e would stay there with his flashers on until police arrived

. I d. In

sum, we held
W i lson relat e d events as they happened, reporting a drun k driver who was still o n the road and posed an on going danger, his sta t e ments were for immediate police assista nce were frequently m a de without p rompting or in response to questioning, a nd were spon taneous and30

con cerned public safety. Each of the facto rs identi fied in Davis

. . . show that W i lson ’ s 911 c all was not t est imonial.
I d. at 1 61.
Cook also dealt with a 9 11 caller who repo r t ed a dru nk driver. 199 S.W.3d

at 496. After ano the r driver made an obscene ge sture and thr ew a bee r bottle at the

c a ller ’s truc k , the caller called 911 and told the o perator that t he other driver was
drunk. Id. The recording of t he 911 call was offer e d at tria l but the caller did not appear as a witn ess
. Id. W e n oted that, cons istent with Davis , “ Texas courts

genera lly have looked to the degree of f ormality of a declar ant ’ s interaction wi th police, the purpose and structure of p oli ce questioning, an d t he likelihood that the declarant expects tha t the statements could be used in a criminal prosecution. ” Id.
at 497

– 98 ; see also Spencer v. State , 162 S .W.3d 877, 882 (Tex. App.

— Houston [14th Dist.] 2005, no pet.). W e held the trial co urt did not err in ad mitting the recording of the 911 call because the call concerned “a po tential crime in progress,” was initiated by the cal ler, was informal, and took p lace at the beginning
of the p olice investi ga tion. 199 S

. W

. 3d at 498

. We observ ed that “ [s] t atements
made to police during contact initiated by a wit nes s at the beginning of an
inve stigation are generally not considered testi monial

. ” Id. ; see also Ruth v. St ate,
167 S.W.3d 560, 569 (Tex. App.

— Hous ton [14th Dist.] 2005, no pet.) ( sta tin g “we

see nothing in th e r ecord suggesting that this call, in which a witness to a crime in31

progres s at her home summoned the police, deviates from the typical,

non testimonial 911 call”).
As in Ramjattansingh and C ook , we conclude Creshell ’s state ment s d uring
the 911 call were not testimonial. Creshell related events as they unfold ed and she
made the m to enable police to resp on d to what she p erceived was an on goi ng

emer gency. See Ramjatta nsingh , 587 S.W .3d at 160

– 61; Dav is , 547 U.S

. at 827

– 28

. Thus, Sm all ’s Confron tation Cla u se rights were no t violated by the admission
of the 911 call

. We overr ule Smal l ’ s first iss ue. 2. Den ying the Motion to S uppress S m all argues the trial co urt erred in denying his Motio n to S u ppress evidence recovered fro m his ca r beca use the 911 call “ did n o t provide the officers

w ith sufficient informati on to r ise to the level of reas onable sus pic ion to justify an
invest iga tive d eten tion. ” He states that although Creshe ll “ made hers elf
accountable for the in t ervention, by provi ding h er name and telephone n u mber to the dispatcher, ” the off

i cers did not speak to h er or kn ow anyt h in g a bout he r when they detained Sm all. Small argues that the o fficers “ did not hing to corrobo rate the
caller ’ s account of a possible kidnapping or dead bod y ” before d etaining Small a t
gun point , and that once he got out of his car with hi s hands u p, the o ff ice rs shou ld32

have opened the t runk “ a nd immediately determined there was no one, alive or
dea d, in that t runk. That should have ended the inve stigative deten tion. ” 13
T he trial co u rt con ducted a hearing on S ma ll ’ s Mo tion to Sup pre ss pri or to
trial. S m all argued d uring the hearing that he should not have been arrest e d based on an anonymous tip. He argue d he d id not know how the “ gun got on the scene. ”
He ar gued: So any citizen ac c used, a lawyer, a doctor, a professor, a s tudent that ’ s led to believe t hat they may have done somet hing wrong, I can pull my gun on y ou and I’ m going to stop you and I can search your c ar because I believe you have committed a crim e. That ’ s no t what t he constitu tion is about. It ’ s ab out hav ing reason able suspicio ns and int e lligible suspicions that a c rime has been committed [.] A nd in this case no body was found. W e are no t saying they didn ’ t have a right to detain him, but they didn ’ t h ave the right t o arrest him. A nd they arres ted him pr ior t o any thing being found.
Sma l l asked the trial court to exclude the evidence of gun s, video ta p e, “ an y th ing that is relating to t his stop ” as “ fruits of a po isonous tree. It actually is com ing in
beca use h e was i l legally detained. Did they have a c al l? Abs o lutely, they had a call, J udge. Was it credible? Who says? But it [a victim ] wasn ’ t there. ”

13 D uring the suppr ession hearing, Offi cer Preston testified that the officers c ould not immediately open the trunk afte r stopping Small bec ause they

n eed[ ed] to separate the d efendant from the vehicle because if we attempt to have the defendant open the trunk while still i n the vehicle , th at provides him a means of egress. H e could dri ve away. H e can throw the vehic le i n reverse and he cou ld access a weapon w hile still insid e the vehicle. S o it would be impo rtant to sepa r at e him from where we belie ve the body may be.33

T he State argued that while the trial c ourt and defens e counsel may have disagree d w ith th e force used to detain Small , the c entral ques t ion w a s whether the
officers had “ reasonable susp icion to believe that [Small] had be en e ngaged in
criminal acti vity and was that basis sufficient for them to conduct an investiga tion? ” T he State argued the o fficers had “ reasonable suspicion to d e tain [S m all] a nd se a

rch his vehicle for the crimes or evi dence of the crime. ” W hen
officers res pon d to a scene, the St ate argued , “ we want them to be able to rely on
informati on given by third pa rties because i f they do n ’ t have that information and
th e y ’ re una

bl e to investigate things like a body being stuffed in the bac k of a
vehic le, there will arise a n opportunity where a body is actually found in the bac k
of a vehicle when it ’ s too late. ”
We f ind Navarett e v. C

al i fornia , 572 U.S. 393 (2014) is instructiv e. In
Navarette , the Supreme Court considered wheth er informa tion provide d by an

a nonymous t ipster contained sufficient “ indicia of reliabilit y ” to just ify an
inv estigative stop. Id

. at 397. In that case , the Cal ifornia Highway Patrol received
a report fr o m an anonymous caller that a silver Ford F

– 150 pi ckup truck traveling

s outhbound on the highwa y had run the caller off the road. Id. at 395

. A few
minutes lat er, a highway patrol man encountered a tru ck match ing the one described by the caller travelin g i n th e direction reported. Id. The patrolman pul led the truc k over and a second patrolman arri ved on the scene. Id. As the34

officers appro ache d the truck, the y sm e lled marijuana and a search of the tru ck bed

re vealed thirty pounds of marijuana. Id. Th e offi cers arrested the driver and

passenger. Id. at 395

– 96

. The driver and passenger m oved to suppress the

ev idence, arguing the traffic stop vio lated the Fourth Amendment be cause the patrol m e n did not have a reasonable suspic ion of criminal activity. I d. at 396. T he
motio n to su ppress was denied and the suspects pleaded guilty to transp orting

ma rijuana. Id. The California Court of A p peal affirmed, hold ing the officer had reasonable susp icion to con duct t he investigative st op. Id. Though the record l acked a ny ind ica tion that the patrolman observed the pickup truck driving err atically, the Supreme Court held that the caller ’ s tip
containe d adequate indic ia of reliability to support a reasonabl e suspi cion f or a stop, given that it wa s based on eyewitne s s knowledge, was cont emp orane ously made, and was made to the 911 emergency system. I d. at 399

–

400

. The C ourt
noted t hat “[e] ven a reliable tip will jus tify an inves tigativ e stop only if it cr eates

rea sonabl e suspicion that ‘ criminal acti vity may be afo o t. ’ ” I d. at 40 1 ( citing Te rry

v
. Ohio , 392 U.S. 1, 30 (1968) ). The Court held that the t raffic stop was proper
because t he conduct alleged by the 911 c aller , “viewed from the standpoint of an objective ly rea sonable police officer, amount [ ed ] to reasonab l e suspicion” of drunk
dr ivi ng. Id. at 402 (citin g Ornelas v. United States , 517 U.S. 690, 696 (1 996) )

.35

Pipkin v. State , 114 S.W.3d 6 49 (Tex. App.

— F ort Worth 2003, no pet.) also
i s illustrative

. T he salien t issue i n Pipkin wa s whether in formation rela y ed from a 91 1 caller to a police officer via pol i ce dispatcher “ was sufficient t o justify the investigative de t ention that l ed to [ Pipkin ’ s] arrest. ” Id. at 653. The caller in
P ipkin reported a d a r

k bl ue spo rts util ity vehicle that was tra veling at an

“ e xtremely slow ” pace. Id. at 652

. The caller pas sed the SUV as he was talking to the pol ice dispatcher and saw the driv er lighting a crack pipe. Id. at 6 53

. The
call er gave the dispatcher the SUV ’ s li cense plate number, description, and location, as we l l as his own contact information and destination. Id.
An o ffic er who was patrolling the area t estifie d he received a call fro m dispatch about an erratic driver on th e freeway. Id. The officer testifi ed tha t he saw the vehicle and began following it, u l ti mately pulling it over. Id. The officer said
he did not r ec al l seeing any traffic violations by the SUV but stopped the vehi cle
based on the cit izen ’ s call about th e driver smoking a crack pipe. Id. The offic er approached Pipkin and asked if he had b ee n smoking an d Pipkin told him he “ had
smoked a joint earlie r. ” Id. The officer asked Pipkin t o get out of the SUV. I d.
A no ther officer arrived and saw Pipkin thro w a rock of co caine to the ground. The

p olice searched the SUV and found more cocaine, ro ll ing papers, a glass tube , and a lighter in th e center con sole of the SUV. Id.36

Pipkin filed a motion to suppress the evide nce found during the detention, arguing the detention that led to his arres t and the s earch and seizure of drug

para phernali a f

r om his vehicle “was conducted without reason able suspic ion. ” Id.
at 652. The trial court denied the motion. Id. The court of appeals observed th at

to make an invest igative stop
the investigating offi cer mu st po ssess a reasonable suspicion based on spe c if ic articulable facts that, in light of the offi cer ’ s experi ence and general knowledge, would le ad the officer to the reasonabl e conclusion that cr iminal activity is u nderway and the detained person is connec ted t o the activity

. Id. at 653

– 54 (citing K

in g v. State , 35 S.W.3d 740, 743 (Tex. App

. — Hous ton [1st
Dis t.] 2000, no pet.) ). The stop must be based on more than “ mere hun ch or suspic ion. ” I

d. at 654

. C o nside ring “ the totality of the circumstan ces, ” the co urt
held the information from the ca ller was “ suffi ciently reliable to justify the
investi g ative stop [

. ] ” Id

. at 656. The court noted tha t the caller was a “ private

c oncerned citizen ” no t connected with the polic e ; h e gave the dispatcher a
de script ion of the SUV and i ts location and “ personall y wa tched and reported [Pipkin ’ s] actions as he dr ove past ” him; an d gave the police department his

con tact information so he co uld be “ held accoun ta ble for his interven tion. ” Id. at
655. The court affi rmed t he tria l court ’ s denial of the motion to suppr e s s. Id. at
656.37

S mall r elies on Fl orida v. J.L. , 529 U.S. 266 ( 2 0 00) for the proposition that an accurate description of a subject ’s location and appearance is re liable only to the
extent it identifies the pe rs on accused by a tips ter of a crime, but i t d o es not show the tip s ter has knowledge of “ conceal ed criminal acti v ity

. ” Id. at 272. But the tipster in J.L

. , who alerted polic e that someone in a plaid shirt at a bus stop w as carrying a gun, wa s anony mous a nd left the police without t he a bility to test his knowledge or credibility. Id

. at 271

. On t h e other hand, C re shell provided her

name, a c all back number , waited at the scen e for law enforcemen t to arrive, and
described what she believed to be ongo ing cr iminal activity, all of whic h b olster ed
he r cr e dibility as an i nformant

. Thus, J.L. is inappos i te.
Small also re lies on Alabama v. White , 49 6 U.S

. 325 (19 90) , where a traffic stop was held to be justified , in asserti ng the evide nce recovered during his tr affic

sto p should be suppres sed

. White s temme d from an anonymous telephone tip that
White woul d be leaving an a p artment at a specific time i n a specific v ehicle and going to a specific mot el in possession of cocaine. Id. at 32 7 . The police went t o the apartment, followed W h ite in he r vehicle , an d s topped White just short of the
motel. Id. The o fficers told Whit e she wa s stopped for susp icion o f co caine possession and a sked if th ey could look for cocaine. Id. White gave them permission to sea rc h and they found marijuana. Id. She wa s a rrested an d at the police s tation, the police found three mi llig rams of cocai ne i n White ’s purse. Id.38

Wh ite pl eaded guilt y but appealed the d enial of her suppression motion. Id. at
327

– 28. A labama ’s Court of Cr iminal A p peals reversed the conviction, h old ing
the o fficers did not have the reasonable suspicio n req uired to justify th e
in vestig ato ry stop of W h ite ’s c ar and the marijuana and cocain e were “fru i t s of [White ’s] unc o nstitutional detention. ” Id. at 328. The Su preme Court reversed, holding the inv estigator y stop o f White ’s car was justified and noting the

anon ymous tip c ontai n ed many details “rel ating not just to ea sily obtained facts
and conditions exi sting at the time of the tip

. ” Id. at 332 ( q uoting Il linois v. Gates , 462 U.S

. 213, 245 (1983)) . The Cou r t noted the proposition “that because a n
in forman t is shown to be right about some things , he is probably r ight about other
facts that he has al leged, in cluding the claim that the obje ct of th e tip is en gaged in criminal activity. ” Id. at 331 (citing Gat e s , 462 U.S. a t 244 )

. White does not
support Smal l ’ s argument

. In the present case , w h en w e view the r ecord in the light m ost favorable to
the trial court ’ s ruling , as we must, we conclude the t rial cour t ’ s ru ling denying the
motion t o s uppress is suppo rt e d by the record. See Ruiz , 577 S.W.3d at 545

. T he police testified du ring the suppression hearing that they would h ave treat ed any traffic stop based on a cal l about a kidnappi n g the same as Small ’ s stop. T he traffic stop was based on C reshell ’s 911 call , which provided de tailed informatio n about Smal l ’ s car, his location, Creshel l ’ s identifyi ng i nformation and location, and39

h er bel ief that she was witnessing a kidnapp ing. She remained on the call for

sev eral minutes with th e dispatcher while s he followed Smal l and relayed his updated location, and sh e remained at the sc ene until the officers arrived

. See
P ipkin , 114 S.W .3d a t 655 ( “ A detailed description of the wrongdoing, al o ng with

a statement that the event was observed first hand , entitles an informant ’ s tip to
greater w eight.

. . . A tip also des erves great w eight if the person put herself in a position to be held account able f or her intervention

. ” ) (citations omitted)

. W h en the officers ar rived at the scene , the information Creshell provided was sufficient ly
corrobor ated given that Sma l l was at the locatio n she identified, and he was sitting in a parked car mat c hing the descri ption Creshell provided of a wh ite, older

- mod e l
sedan with a flat tire.
Under the totality of the ci r cumstances, the i nformation provided by C reshell

was sufficiently corr ob orated and provided the officers with reasonable suspic ion for the investig ative sto p. See Navarette , 572 U

. S. at 402. 14 Thu s , the trial c ourt properly denied the mo tio n to suppr ess
. We overrule Small ’ s second issue

.

14 The S u preme Court has recognized that reasonable sus picion “need not rule out the possibility o f inno cent conduct. ” Navarette v. Calif ornia , 572 U.S. 393, 4 03 (2014) (citing Unite d States v. Arvizu , 534 U.S . 266, 277 (20 02) )

.40 Concl usi on We hold tha t the statem ents made on the 911 ca ll did not violate Small ’ s rights under the C o nfrontat ion Cl ause. We further hold that the 911 call cont a i ned
sufficie nt indicia of reliab ility s o a s to justi fy the investigativ e stop.
W e a f firm the t r ial court’ s j udgment.

V eronica R iv as
- Mol l oy J u stic e

P anel co nsists of Justic es Hightowe r, Ri v as
- Molloy , and Farris

. Do n ot p ublish

. T EX

. R

. A P P

. P. 47.2(b ).