Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00814-CR

Jacob Randall SONGER,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law, Kendall County, Texas

Trial Court No. 13-272-CR

Honorable Bill R. Palmer, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: November 25, 2015

AFFIRMED

Jacob Randall Songer was charged with a first offense of driving while intoxicated. After 

the trial court denied his motion to suppress, Songer entered a plea of no contest. On appeal, 

Songer challenges the trial court’s ruling on his motion to suppress, contending the officer did not 

have reasonable suspicion to stop him. We affirm the trial court’s judgment.
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BACKGROUND

The arresting officer, Deputy Escalante, was the only witness to testify during the hearing 

on Songer’s motion to suppress.1 The following summarizes Deputy Escalante’s testimony 

regarding the information he possessed and his observations before stopping Songer’s vehicle.

On April 18, 2013, Deputy Escalante was dispatched to a McDonald’s restaurant at a truck 

stop in response to a manager’s call that a car had hit the building. The manager planned to delay 

the driver’s food order until the police could arrive.2

 Although Deputy Escalante agreed the 911 

recording did not contain a description of the vehicle’s color, Deputy Escalante testified the 

dispatcher told him the car was white.

Deputy Escalante arrived at the McDonald’s restaurant in less than two minutes, and only 

one car was in the drive-through. Deputy Escalante testified the car was white.3

 Deputy Escalante 

further testified there were no other vehicles at the drive-through and only a few vehicles pumping 

gas at the truck stop because it was 12:23 a.m. Deputy Escalante pulled behind Songer’s car and 

 1 Although Songer’s attorney and the prosecutor agreed to play the recording of a 911 call for the trial court, the record 

does not reflect that the recording was offered or admitted into evidence, and the recording is not contained in the 

appellate record.

2 This information was discussed in the record during closing arguments as being contained in the 911 recording:

[Prosecutor]: Dispatch said that they were going to try and delay his order so he would still be there.

THE COURT: That was on the tape?

[Prosecutor]: That was on the — the manager did state that on the —

THE COURT: Okay.

[Prosecutor]: — on the 911 call, that they were going to try and delay his order until they got there.

Deputy Escalante appeared to believe the service was being delayed based on the following testimony:

Q. Okay. And when you got there, was there a delay — did you have to wait a little —

A. I just waited a few seconds. Yes, ma’am.

Q. Was the person at the window — was the person at the window waiting to give him his 

food until —

A. That’s correct. Yes.

Q. Okay. And did you — did dispatch communicate that to you, that they were going to try 

and hold him there?

A. No. I — I don’t recall that. I just — after I got dispatched, I just got there and just waited 

to make contact with the subject. And a few — I don’t know — 40 seconds out, I’m guessing, delay 

to serve the food — just give you the food through the window. When he got the food, he just 

started moving his car. That’s when I initiated the traffic stop. 3 Deputy Escalante agreed that his report referenced the color of the car as being silver but stated the car was white.
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waited until Songer was served his food. After Songer drove a few yards away from the drivethrough window, Deputy Escalante stopped him. Deputy Escalante stated he normally would pull 

over the driver of a vehicle who hit and damaged a building in order to gather more information 

and determine the reason he hit the building.

REASONABLE SUSPICION AND STANDARD OF REVIEW

“A police officer has reasonable suspicion to detain if he has specific, articulable facts that, 

combined with rational inferences from those facts, would lead him reasonably to conclude that 

the person detained is, has been, or soon will be engaged in criminal activity.” Matthews v. State, 

431 S.W.3d 596, 603 (Tex. Crim. App. 2014) (internal citations omitted). “In determining whether 

an officer has reasonable suspicion to detain, we look at the totality of the circumstances through 

an objective lens.” Id.

In evaluating the totality of the circumstances, we use a bifurcated standard of review. 

Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). As an appellate court, we “give 

almost total deference to a trial judge’s findings of historical fact and credibility determinations 

that are supported by the record.” Id. However, “[w]e review de novo whether the totality of 

circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity.” 

Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013) (internal citations omitted). 

In order to constitute reasonable suspicion, “[the] 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). 

“When an officer’s suspicion of criminal activity arises from an anonymous caller rather than from 

the officer’s own observations, the tip seldom provides reasonable suspicion for an investigatory 

stop” because it lacks “sufficient indicia of reliability.” Id. “An inverse relationship exists 

between the reliability of the informant and the amount of corroborated information required to 
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justify the police intrusion; the less reliable the tip, the more information is needed.” Id. 

“However, when the informant provides self-identifying information that makes himself 

accountable for the intervention, the degree of reliability significantly improves.” Id.

In this case, Deputy Escalante was responding to a dispatch based on a 911 call received 

from the manager of the McDonald’s restaurant, who was in a position to be identified and held 

accountable for the information provided. Accordingly, we conclude the information was reliable. 

See Nacu v. State, 373 S.W.3d 691, 694-95 (Tex. App.—San Antonio 2012, no pet.) (concluding 

information from restaurant manager, who placed herself in a position to be identified and held 

accountable for the information she provided, was reliable). The manager reported a car had hit 

the building which was an unusual occurrence and could constitute a criminal offense. See TEX.

PENAL CODE ANN. § 28.04(a) (West 2011) (“A person commits an offense if, without the effective 

consent of the owner, he recklessly damages or destroys property of the owner.”); see also 

Arguellez, 409 S.W.3d at 663 (noting “[w]e review de novo whether the totality of circumstances 

is sufficient to support an officer’s reasonable suspicion of criminal activity”). Deputy Escalante 

arrived at the McDonald’s in less than two minutes, and only one car was in the drive-through. 

The car was white, which was the same color the dispatcher described to Deputy Escalante. 

Deputy Escalante pulled behind the car and waited several seconds until the driver was served his 

food. Deputy Escalante stopped the car a few yards away from the drive-through. Based on the 

foregoing, we hold reasonable suspicion existed because the facts show “unusual activity, some 

evidence that connects [Songer] to the unusual activity, and some indication that the unusual 

activity is related to crime.” Martinez, 348 S.W.3d at 923.
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CONCLUSION

The trial court’s judgment is affirmed.

Marialyn Barnard, Justice

DO NOT PUBLISH