Opinion issued September 29, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00455-CR

———————————

DARRYL DWAYNE EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Case No. 14CR1000

MEMORANDUM OPINION

A jury convicted appellant, Darryl Dwayne Evans, of possession of a 

controlled substance, namely, methamphetamine in an amount of four grams or more 
2

but less than 200 grams.

1

 Appellant pleaded true to two enhancement allegations,

2

and the jury assessed his punishment at twenty-six years’ confinement in the Texas 

Department of Criminal Justice, Institutional Division. In one point of error, 

appellant complains that the trial court erred in denying his motion to suppress 

evidence. We reverse and remand.

Background

At the pretrial suppression hearing, Officer Martinez of the Galveston Police 

Department testified that, while on patrol at 1 a.m. on March 30, 2014, he observed 

a car parked in the driveway of T&T Marine. As Officer Martinez “was coming 

down Avenue G about two blocks prior, [he] saw [appellant] outside of the vehicle, 

then . . . walking towards the passenger side, then return back towards the driver’s 

side.” Officer Martinez testified that, given the previous five alarm calls to the 

business, “there would be reasonable suspicion to wonder why [appellant] was on 

the property at 1:00 o’clock in the morning when the business was already closed.”

Officer Martinez stated that as appellant walked around the car, “he looked at 

me and noticed me coming . . . then rapidly went back to the driver’s seat and got in 

the car.” After Officer Martinez passed, appellant turned on his lights and pulled 

out of the driveway. Officer Martinez then made a U-turn and, after activating his 

 

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2009).

2 Appellant was previously convicted of the felony offense of possession of a 

controlled substance in 2008 and 1999.
3

emergency lights, drove up behind appellant, who immediately pulled over. The 

dash cam video from the officer’s car was admitted into evidence at the suppression 

hearing.

When Officer Martinez asked appellant why he was parked in the driveway, 

appellant told him that he had dropped his cell phone. Officer Martinez then detected

a strong smell of marijuana coming from appellant’s vehicle. After asking appellant 

to leave his vehicle, Officer Martinez performed a pat down search of appellant. He 

then searched the vehicle and discovered what appeared to be crystal 

methamphetamine in a plastic bag and a crack cocaine rock on the driver’s seat. 

Officer Martinez arrested appellant at the scene. A backpack containing crystal 

meth, an electronic scale, and small plastic bags was later found in the trunk of 

appellant’s vehicle.

Officer Martinez testified that there had been five 911 alarm calls to T & T 

Marine in the previous two weeks but he did not believe that any of those 911 calls 

resulted in burglary or other criminal activity. On cross-examination, Officer 

Martinez testified that he did not see appellant walk towards the business, away from 

the business, or leave the vicinity of the vehicle. He further testified that he was not 

on patrol in the area because of a prior history of burglaries, nor was this a high-crime 

area. According to Officer Martinez, he did not observe appellant commit any traffic 

violations or engage in any criminal activity prior to the stop. 
4

After appellant’s pretrial suppression motion was denied, the jury convicted 

him of possession of a controlled substance and, with two enhancements, assessed 

his punishment at twenty-six years’ confinement.

Discussion

A. Standard of Review

We apply a bifurcated standard of review: (1) giving almost total deference to 

a trial court’s determination of historical facts and application of law to fact 

questions that turn on credibility and demeanor, and (2) reviewing de novo 

application of law to fact questions that do not turn on credibility and demeanor. 

Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The reviewing court 

views the evidence in the light most favorable to the trial court’s ruling. Gutierrez 

v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). At the suppression hearing, 

the trial judge is the sole trier of fact and exclusive judge of the credibility of the 

witnesses and the weight to be given to their testimony. St. George v. State, 237 

S.W.3d 720, 725 (Tex. Crim. App. 2007).

B. Applicable Law

An investigative detention requires a police officer to have reasonable

suspicion of criminal activity. See Matthews v. State, 431 S.W.3d 596, 602–03 (Tex.

Crim. App. 2014). A determination of reasonable suspicion requires a review of the 

totality of the circumstances, and reasonable suspicion may exist even if those 
5

circumstances in isolation may be just as consistent with innocent activity as with 

criminal activity. York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011).

Reasonable suspicion is present if the officer has specific, articulable facts 

that, when combined with rational inferences from those facts, would lead the officer 

to reasonably conclude that a person actually is, has been, or soon will be engaged 

in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 

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. 

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). “Although an 

officer’s reliance on a mere ‘hunch’ is insufficient to justify a[n] [investigatory] stop, 

the likelihood of criminal activity need not rise to the level required for probable 

cause.” United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751 (2002)

(citation omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 

1585 (1989)). 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. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 

(1968).

The State bears the burden to show that an officer had at least a reasonable

suspicion the defendant either had committed an offense, or was about to do so, 
6

before they made the warrantless stop. Derichsweiler v. State, 348 S.W.3d 906, 914 

(Tex. Crim. App. 2011) (citing Sokolow, 490 U.S. at 7, 109 S. Ct. at 1585).

C. Analysis

We begin by determining whether the trial court’s implicit findings, which led 

to the denial of the motion to suppress, are supported by the record. See State v. 

Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013). Officer Martinez performed an 

investigatory stop based on the following articulable facts: (1) there had been five 

911 alarm calls to the specific address; (2) appellant was parked in the business’s 

driveway at 1 a.m.; (3) the business was closed; (4) upon seeing Officer Martinez’s 

vehicle driving down the street, appellant rapidly walked from his passenger side 

door to his driver’s side door and left the parking lot.

In Gamble v. State, a police officer performed an investigatory stop based on 

the following facts: (1) it was 3:00 a.m.; (2) the defendant was either standing in the 

street near, or walking in the street toward, a residence to which the officers had 

been frequently called in the past year, but at which they had never made an arrest 

for illicit activity; (3) the defendant watched the marked police car and walked away 

from it when it turned around; and (4) the area had a history of illicit activity. 8 

S.W.3d 452, 453–54 (Tex. App.—Houston [1st Dist.] 1999, no pet.). This Court 

held that the trial court had erred in denying the defendant’s motion to suppress 
7

because there was insufficient evidence to support a reasonable suspicion of criminal 

activity. See id.

There are marked similarities between this case and Gamble. First, Officer 

Martinez testified that there were five 911 calls to the business over the past two 

weeks, similar to the calls to police regarding the residence in Gamble, and in both 

cases, no arrests resulted. Id. Second, the stop in this case occurred at 1:00 a.m., 

and the defendant in Gamble was stopped at 3:00 a.m. Id. Third, Officer Martinez 

testified that appellant quickly left upon seeing him, and in Gamble, the defendant 

saw the marked police car and walked away from it when it turned around. Id.3

Notably, unlike Gamble, there is no evidence that the location in this case was 

considered a “high-crime” area.4

In Klare v. State, the Fourteenth Court of Appeals determined that the officer 

lacked reasonable suspicion to stop the truck the defendant was driving based on the 

following articulable facts: (1) it was 2:30 a.m.; (2) while driving on a highway, the 

officer saw a truck parked behind a shopping center; (3) the businesses in the

 

3 The Court of Criminal Appeals has held that persons in an automobile are subject 

to temporary investigative detentions in the same manner as pedestrians. See 

Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

4 A “high-crime” area, although not dispositive of reasonable suspicion, is a factor to 

be considered when analyzing the totality of the circumstances. See Illinois v. 

Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (noting that, while presence 

in high-crime area alone is not enough to support reasonable suspicion, fact that 

incident occurs in high-crime area is relevant factor to be considered in reviewing 

totality of circumstances).
8

shopping center were closed; (4) there had been burglaries at the shopping center in 

the past, though the police officer did not say how recent or how many; (5) the officer 

turned into the parking lot shortly afterwards and discovered that the truck was gone; 

(6) the officer then turned onto an adjoining road and within fifteen to twenty 

seconds came upon a truck that he believed to be the same as the one at the shopping 

center; and (7) the officer wanted to identify the truck. 76 S.W.3d 68, 71 (Tex. 

App.—Houston [14th Dist.] 2002, pet. ref’d).

There are several similarities between this case and Klare. In Klare, the

officer testified that the above-cited reasons “raised [his] curiosity as far as suspicion 

goes,” which the court described as an “inarticulate hunch.” Id. at 75 (quoting Terry, 

392 U.S. at 22, 88 S. Ct. at 1880). Similarly, Officer Martinez testified that when 

he saw appellant’s vehicle parked in front of the business, he was “[j]ust wondering 

what the car was doing there at 1:00 o’clock in the morning when the business was 

already closed.” Further, the stops in both cases occurred late at night, and the 

vehicles were parked near closed businesses. We also note that the defendant in 

Klare was parked behind a business which had been previously burglarized, whereas 

here, there were no known burglaries, only alarm calls.

In Turner v. State, the Dallas Court of Appeals found circumstances similar 

to those present in this case did not create a reasonable suspicion warranting an 

investigatory stop. See No. 05-10-01225-CR, 2011 WL 4953438, at *1–2 (Tex. 
9

App.—Dallas Oct. 18, 2011, no pet.) (mem. op., not designated for publication).

The police officer in Turner cited the following facts justifying the stop: (1) the stop 

took place at approximately 1 a.m.; (2) the defendant’s car’s brake lights and 

headlights came on when the officer turned down a street in a neighborhood; (3) the 

defendant then made an immediate left turn; (4) the license plate came back 

registered to a person residing in another city; and (5) four people occupied the 

vehicle. Id.

Finding the facts insufficient to support reasonable suspicion, the Turner court 

noted that “there is a considerable difference between an officer stopping a vehicle 

seen parked in a public parking lot . . . and an officer stopping someone seen walking 

from behind private property well after the business was closed.” Id. at *3 (quoting 

Tanner v. State, 228 S.W.3d 852, n.5 (Tex. App.—Austin 2007, no pet.) (citations 

omitted)).5 Here, the dash cam video shows that appellant was parked in the welllit driveway of T&T Marine, and Officer Martinez testified he did not see appellant

leave the vicinity of his vehicle before he turned on his headlights and began to drive 

away. The Turner court also noted that the police officer did not provide any 

evidence that appellant was fleeing the scene. See Turner, 2011 WL 4953438, at *4 

 

5

In Turner v State, the defendant was parked on a neighborhood street, which the 

court found “more akin to being parked in a public parking lot.” 05-10-01225-CR, 

2011 WL 4953438, at *3 (Tex. App.—Dallas Oct. 18, 2011, no pet.) (mem. op., not 

designated for publication).
10

(stating that officer “did not testify [the defendant] spun out his tires in an effort to 

leave or that he sped away”). Similarly, Officer Martinez did not testify that 

appellant quickly drove away; rather, he stated that appellant “rapidly went back to 

the driver’s seat, got in the car. And as I passed him, his lights came on; and he

pulled out of the driveway.”

Finally, in Jones v. State, this Court held that the trial court could have 

reasonably concluded that the officer had reasonable suspicion to stop the defendant 

based on (1) the lateness of the hour; (2) the vehicle was parked outside a closed 

business; (3) the high incidence of crime in the vicinity; and (4) the defendant’s 

attempt to flee as the police officer parked his car nearby and approached the car on 

foot. See No. 01-07-00240-CR, 2008 WL 746527, at *3 (Tex. App.—Houston [1st 

Dist.] 2008, no pet.) (mem. op., not designated for publication). The Court stated 

that although flight alone may not justify a stop, it does constitute a valid factor in 

determining whether an officer had reasonable suspicion to detain an individual. See 

id. at *3. Here, there is no evidence that appellant attempted to flee as did the 

defendant in Jones, nor was he stopped in a high-crime area.

Based on our review of the record and relevant case law, we cannot conclude 

that Officer Martinez had reasonable suspicion, based on the totality of the 

circumstances, to believe that appellant had engaged, or was about to engage, in 
11

criminal activity. Therefore, we hold that the trial court erred in denying appellant’s 

motion to suppress. We sustain appellant’s point of error.

Conclusion

We reverse the judgment of the trial court and remand this case for 

proceedings consistent with this opinion.

Russell Lloyd

Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).