AFFIRMED as MODIFIED and Opinion Filed February 27, 2020 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00218-CR TOBY FRANCIS TRACY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1739255-M 

### MEMORANDUM OPINION Before Justices Schenck , Osborne, and Reichek Opinion by Justice Reichek Following the denial of his motion to suppress, Toby Francis Tr acy entered a plea agreement with the State and pleaded guilty to possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. See T EX

. H EALTH & S AFETY C ODE A

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. § 481.112(a), (d). The trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervis ion for five years and assessed a fine of $1,500. On appeal, appellant asserts (1) the trial court abused its dis cretion in denying his motion to suppress because the officer illegally detained him and (2) the order of deferred adjudication should be reformed to delete the amount of restitution. For re asons set out below, we overrule appellant’s first issue and sustain his second. We modify the trial court’s order of deferred adjudication to delete the res titution amount and affirm the or der as modified.–2– F ACTUAL B ACKGROUND Lancaster Police Sgt. Falvio Salazar was the sole witness at t he suppression hearing. Salazar had worked for the city of Lancaster for thirteen years and had been promoted to patrol sergeant at the time of trial. He previously worked in “recon, some interdiction.” In June 2018, he was on patrol with a training officer when he observed a whi te truck stopped in the road, across from a wooded area, with the passenger door open. A woman, car rying a dog, came from the wooded area and got into the truck. The wooded area was marked with a no-trespassing sign. Salazar testified he was familiar with the area and said it wa s known for drugs and prostitution. A Motel 6 was across from the wooded area, and S alazar said it had “a lot of prostitution.” Additionally, he s aid homeless people “stay” in the wooded area, “[s]ort of like a tent city type of deal,” and Salazar had been out there on prev ious occasions to “clear” them out. Salazar said he believed the circumstances were suspicious and decided to investigate. He activated his lights and approach ed the driver of the vehicle, who was appellant; the training officer talked to the woman and a male passenger. Two more officers ar rived at the scene in marked police units. A “computer check” showed that appellant had an outstanding Dal las warrant for his

arrest. 1 Once Salazar was able to confirm that the warrant was still a ctive, he asked appellant to get out of his vehicle. He asked appellant about the male and female passengers, and appellant told him they “live in the field and work for him.” Salazar pl aced appellant under arrest for the outstanding warrant. During a search incident to arrest, he fo und a bag of methamphetamine in appellant’s pants pocket. In a ddition to Salazar’s testimony, a dash-cam video of the stop was admitted as evidence.

1 According to Salazar, the male passenger had seven active warr ants.–3– The trial court denied appellant’s motion to suppress and made the following findings of fact: 1. While on patrol, Lancaster police officer Falvio Salazar ob served a woman emerge from a wooded area and approach the defendant’s vehicle which was stopped by a Motel 6 on the opposite side of the street across from the wooded area. 2. Officer Salazar testified ther e is a no trespassing sign on the lot of the wooded area, that in the past there has been homeless people on the pr operty making a tent city, and that he had often been called to t he location to clea r out the homeless that were present. 3. Salazar testified further that the area was a high crime ar ea with a lot of drug and prostitution activity tak ing place at the Motel 6. 4. Salazar then made contact with the defendant and after asce rtaining the defendant’s information a comput er check revealed the defendant had an outstanding warrant that was later confirmed. 5. Placing the defendant under ar rest for the outstanding warr ant, the defendant was searched and a bag of methamphetamine was found in the defe ndant’s pant pocket. The court concluded that Salazar’ s testimony about the criminal activity in the neighborhood, combined with his testimony that he saw a woman c oming from the wooded area where a no trespassing sign was visibly displayed, amounted to “specific articulable facts” to detain appellant for investigative purposes.
M OTION TO S UPPRESS In his first issue, appellant argues the trial court abused its discretion when it denied his motion to suppress because the o fficer did not have reasonable suspicion to detain him. We review a trial court’s ruling on a motion to suppress eviden ce for an abuse of discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). When a trial cou rt makes explicit fact findings, we determine whether the evidence , viewed in the light most favorable to the trial court’s ruling, supports the fact findin gs. Johnson v. State , 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We give almost complete deference to the trial court’s determination–4– of historical facts, but we revi ew the court’s application of t he law to those facts de novo. Story , 445 S.W.3d at 732. Investigative detentions are generally governed by the reasonab le suspicion standard. York
v. State , 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). Under the Fourth Amendment, reasonable suspicion exists when an officer is aware of specific articulab le facts that, when combined with rational inferences from those facts, would lead him to reasona bly suspect that a p articular person has engaged or is or soon will be engaging in criminal activity

. Id .; Terry v. Ohio , 392 U.S. 1, 21– 22 (1968). The officer must be able to articulate something mo re than an “inchoate and unparticularized suspicion or ‘hunch.’” Foster v. State , 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (quoting Terry , 392 U.S. at 22). Rather, “the articulable facts must show ‘t hat some activity out of the ordinary has occurred, some suggestion to connect th e detainee to the unusual activity, and some indication that the unusual activity is related to crime.’” Derichsweiler v. State , 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). This standard is objec tive; the subjective intent of the officer conducting the detention is irrelevant. Id . at 914. Reasonable suspicion does not depend on the “most likely explanation” for a suspect’s conduct, and r easonable suspicion can exist even if the conduct is “as consistent with innocent activity as with criminal activity.” York , 342 S.W.3d
at 536. Here, appellant argues Salazar had no specific, articulable f acts to connect him to criminal activity; rather, he contends, he was “merely sitting in a car. ” While appellant’s activity may have been equally consistent with i nnocent activity, reasonable susp icion of criminal ac tivity did exist. Salazar observed a truck, stopped in the middle of the roadway, waiting for a woman who emerged from a wooded area across the street. The wooded area was mark ed with a no-trespassing sign. Salazar was familiar with the area. He had been out on calls t o clear homeless people from the wooded area. In addition, the area was known for its prostitut ion and drug activity. From these–5– facts and the reasonable inferences drawn from them and based o n Salazar’s experience, we conclude Salazar had more than an inarticulable hunch that some unusual activity related to crime was occurring and that appellant, as driver of the truck, was i nvolved in that unusua l activity related to crime. Because the trial court properly concluded that Sala zar had a reasonable suspicion to detain appellant while he invest igated, it did not abuse its di scretion in denying appellant’s motion to suppress the methamphetamine found during the search inciden t to arrest. We overrule the first issue.
M ODIFICATION OF D EFERRED A DJUDICATION O RDER In a second issue raised in a supp lemental brief, appellant arg ues the order of deferred adjudication should be modified t o delete an order of restituti on. After appellant’s motion to suppress was denied, he reached an agreement with the State to plead guilty in exchange for five years’ deferred communit y supervision, a $1,500 fine, and $180 in restitution. At the plea hearing, after admoni shing appellant of the consequ ences of his plea, the trial judge found the evidence was sufficient to support guilt but de ferred such a finding, stating, “I will honor the plea bargain agreement and without finding of guilt p lace on you [sic] community supervision or probation for five years[,] $1,500 fine, and cos ts. . .” Appellant argues that the trial judge’s failure to orally pronounce restitution requires us to delete it from the order of deferred adjudication. We agree. Restitution is considered punishment. Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see also Weir v. State , 278 S.W.3d 364, 366 (Tex. Crim . App. 2009). Any restitution amount must be orally pronounced. See e.g., Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); Johnson v. State , No. 05-19-00155-CR, 2020 WL 428150, at *1 (Tex. App.—Dallas Jan. 28, 2020, no pet. h.) (mem. op.) (not designated for publi cation). When there is a conflict–6– with the oral pronouncement of sentence and the written judgmen t, the oral pronouncement controls. Burt v. State , 445 S.W.3d 752, 757 (Tex. Crim. App. 2014). Here, the State asserts that t he trial judge did orally pronoun ce restitution by stating he would honor the plea agreement, w hich included restitution. Ho wever, following that statement, the judge specifically pronounced only five years deferred adju dication probation, a $1,500 fine, and costs. Accordingly, we conclude the inclusion of restituti on in the order of deferred adjudication was error. We sustain the second issue. We have the authority to correct a judgment below to make the r ecord “speak the truth” when we have the necessary data and information to do so. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). We modify the trial court’s orde r of deferred adjudication to d elete the restitution amount and affirm the trial court’s or der of deferred adjudication as modified.

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. P. 47.2(b) 190218F.U05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TOBY FRANCIS TRACY, Appellant
No. 05-19-00218-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1739255-M. Opinion delivered by Justice Reichek; Justices Schenck and Os borne participating. Based on the Court’s opinion of t his date, the trial court’s o rder of deferred adjudication is MODIFIED as follows: To delete the restitution amount.
As MODIFIED , order of deferred adjudication is AFFIRMED

. Judgment entered February 27, 2020