### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00221- CR

Michael G race , Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 6 O F TRAVIS CO UNTY NO. C-1 -CR- 13- 2118 85, H ONO RAB LE B RANDY M UELLER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Following the denial of his motion to suppress evidenc e, appellant Michae l Gra ce pleade d no contest to the offe nse o f d ri v ing while intox icated. Punishm ent was assessed at 1
confine ment in the Travis County J ail for one y ear and a $4,000 fine, but the trial court suspended imposit ion of t he sentence and place d Gra ce on community supervision for a period of two y ear s. I n a single point of err or on appea l, Gra ce asser ts that the trial court abused its discretion in deny ing the motion to suppress. We will affirm the trial cour t’s judgme nt.

BACK GR OUND Grace was arrested for driving whil e int ox icated following a traff ic s top. The sole issue at the suppression hear ing was whether the o ff i ce r wh o had initiated the traff ic stop had

See Tex. P enal Code §§ 49.04, .09( a). 1rea sonable suspicion to detain Gra ce. At the heari n g, t he trial court hear d evidenc e that at

approximately 2:00 a.m. on J uly 7, 2013, Cary Allen, a doorman at Eg o’s Karaoke Ba r i n Austin, observe d a customer, later identified as Gra ce, leaving the bar with another person and g etting into

a vehicle in the parking lot. Allen testified that he believed Gra ce to be intox icated and proce eded
to call 911. A rec ording of the 911 call was admitted into evidenc e. On the call, Allen can be hear d telling the dispatcher , “I need to repor t a drunk driver.” Allen explained to the dispatcher that Gra ce had left the bar “intox icated” and that Allen had “urg ed him not to drive.” Allen added, “We’ve had police here befor e, and they t o l d m e i t ’s alway s better to catc h them in the car befor e they leave , rathe r than waiting until they leave the proper ty and then calling the cops.” Allen also repor ted the

name and location o f the bar, the color and model of the car (“a blue Scion”), the license- plate number, and a phy sical descr iption of Gra ce. During the call, Allen also identified himself and
h i s occupation and indicated that he would be willing to speak with the police in pers o n “i f they need to talk to me.” L ater in the call, Allen repor ted that Gra ce and the passeng er in his vehicle

wer e still in the parking lot, “just sitti ng in the car with the light s o n
. ” T h e d i s patche r informed Allen that an office r was en route to the bar and as k ed Al l en to call ag ain if Gra ce left the bar in his vehicle. Shortly

there afte r, Allen c alled 911 a second time and r eporte d that Gra ce ha d driven

aw ay and informed the dispatcher of the direc tion Gra ce was heade d. On cross-e x amination, Allen acknow ledg ed that he had n o t rela y ed to the dispatcher the amount of drinks that Gra ce had consumed at the bar or specifie d o ther underly ing g rounds for his belief that Gra ce was “ intox icated.” Allen furthe r ac knowledg ed that he had not s pecif ied to dispatch any

persona l experience or training that he had in identify ing intoxicated individuals.

2Offic er L arr y Wright of the Austin Police Depa rtment responde d to the call. Wright testified that dispatch had provided him with a descr iption of the vehicle and the driver, the licenseplate number of the vehicle, the name and phone number of the person who had ca l l ed 9 1 1 , an d the location of the vehicle and the direc tion it was heade d. Wright rec ounted that as he was heade d toward that location, he observe d a vehicle matching the descr iption that had been g i v en t o him,
“ver ified t he li cense plate in the call with the one [he] was seeing in fron t o f [hi m] ,” and initiated

a traff ic stop on the vehicle. On cross-ex am i n ation, Wright acknow ledg ed that the repor t from dispatch rela

y ed no specific information reg arding the condition of the driver other than t h at he

was “intox icated.” Wright also acknow ledg ed that dispatch had provided him with no information
reg arding the experienc e or tra ining of the caller i n identify ing whether someone was intox icated. Wright fu rt h er t est ified that, prior to initiating the traff ic stop, he had not observe d the vehicle commit any traff

ic vi olations such as swerving or spee ding, and he ag ree d with defe nse counsel’s
statement that h e “d i dn’t observe any kind of indications that would normally hint that
may be something is wrong .” Howeve r, Wright added that he knew the vehicle was leaving a bar at approximately 2:00 a.m., when “bar s usually close” and “they start filtering people out.” Wright also testified that he was familiar with Eg o’s Kar oke Ba r beca use he and other office rs had responde d to calls of “ [f] ights or public intoxication [ ] or DWI . . . from that bar numerous times.” Following arg ument, the trial court denied the motion t o s u p p ress. Gra ce subsequently pleade d no contest to driving while intox icated an d was place d on community supervision as noted a

bove. This appe al followed.

3STANDARD OF REVIEW
W e re v i ew a trial court’s ruling on a motion to suppress for abuse of discretion. 2
We are to view the rec ord “in the light most favor able to the trial court’s deter mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outsi de the zone of rea sonable disag ree ment.’” “We will sustain the lower court’s ruling if it is rea sonably supported by the rec ord 3
and is corr ect on any theory of law applicable to the case .” “The appellat e co u rt m u s t apply a 4
bifurca ted standard of revie w, g iving almost total defe renc e to a trial court’ s deter mination of historic fac ts and mix ed ques t i o n s o f l aw and fac t that rely upon the cre dibilit y of a witness, but apply ing a de novo standard of revie w to pu re questions of law and mix ed questions that do not depend on c redibility

deter minations.” 5
Her e, the historical fac ts elicit ed at t h e suppression hear ing are not in dispute. There fore , the controlli n g q u e s ti o n is le g a l: “whe ther these uncontrove rted fac ts cre ated a rea sonable

State v. S t o r

y , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon , 2 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). Id

. (quoting Dixon , 206 S.W .3d at 590); see Montgomery v. State , 810 S.W .2d 372, 391-92 3 (Tex. Crim. App. 1991) (op. on re h’g ). Dixon , 206 S.W .3d at 590 (citing Romero v. State , 80 0 S

. W

. 2 d 539, 543 (Tex. Crim. 4 App. 1990)).

Martinez v. State , 3 4 8 S

. W.3d 919, 922-23 (Tex. Crim. App. 2011) (citing Guzman 5 v. State , 955 S.W .2d 85, 87-89 (Te x . Crim. App. 1997)). 4sus p i ci o n such t hat [ Offic er W rig ht] was just ified i n initiating a [t raf fic] stop.” Acc ording ly , we

6
revie w de novo the tr ial court’s r easona ble-suspicion dete rmination. 7

ANALYSIS
I n Gra ce’ s sole point of error, he asser ts that the t rial court abused i t s d i s cr etion in deny ing his motion to suppress beca use, he contends , Of

fi ce r Wright did not have rea sonable suspicion to initiate the traff ic stop. I n Gra ce’ s view, Allen did not provide sufficie nt inf ormation
to dispatch so as to justify Wright’s stop of the vehicle. I n response , the State arg ues that the totality of circ umstances known to Wright when he initiated the stop, “viewe d throug h the prism of [hi s] particula r level of knowledg e and experience ,” objectively supports the trial court’s conclusion that the offic er ha d “re asonable suspicion to believe that cr iminal activity was a foot.” “Unde r the F ourth Amendment, a war rantless de tention of the person that amounts
to less than a full-blown custodi al arrest m ust be jus tified by a reasonable su s p i ci o n
. ” “A police 8
office r has rea sonable suspicion to detain if he has specific , articula ble fac ts that, combined wi t h rational infere nces from those fac ts, would lead him rea sonably to conclude that the person detained is, has been, or soon will be eng ag ed in criminal activity .” “The se fac ts must show unusual activity , 9

some evidenc e that connec ts t h e detainee to the unusual activity , and some indication that the

Id

. 6 See id

. 7 Derichsweiler v. State , 348 S.W .3d 906, 914 (Tex. Crim. App. 2011) (citing Ford v. State , 8 158 S.W .3d 488, 492 (Tex. Crim. App. 2005)). Id

. (citing United States v. Sokolow , 490 U.S. 1, 7 (1989); Crain v. State , 315 S.W .3d 43, 9 52 (Tex. Crim. App. 2010)). 5unusual activity is r elated to crime.” “This standard is an objective one that disreg ards the actua l 1 0 subjective inte n t o f the arr esting office r and looks, instead, to whether there was an objectively j u s tifiable basis for the detention.” “I t also looks to the totality of the circ umstances; tho s e 1 1
circ umstances may all seem innocent enoug h in isolation, but if they combine to rea sonably sug g est the imminence of criminal conduct, an investiga tive detention is justified.” “‘[T]he rele vant 1 2 inquiry is not whether particula r conduct is innocen t or criminal, but the deg ree of suspicion that attache s to particular

non-cr iminal acts.’” 1 3
“More over, the detaining office r need not be persona lly awa re of ever

y fac t that objectively supports a rea sonable suspicion to detain; rathe r, ‘the cu m ulative information known

t o the cooper ating office rs at the time of the stop is to be considere d in deter mining wheth er

rea sonable suspi cion ex ists.’” “A 911 police dis patche r i s ordi n ar i l y re garded as a ‘coope rating 1 4
office r’ for purposes of making this deter mination.” “F inally , information provided to police from

1 5

State v. Kerwick , 393 S.W .3d 270, 273 (Tex. Crim. App. 2013). 1 0 Derichsweiler , 348 S.W .3d at 914 (c iting Terry v. Ohio , 392 U.S. 1, 21-22 (1968))

. 1 1 Id

. (citing United States v. Cortez , 449 U.S. 411, 417-18 (1981); Reid v. Georgia , 448 U.S. 1 2 438, 441 (1980); Sokolow , 490 U.S. at 9-10; Illinois v. W ardlow , 528 U.S. 119, 125 (2000)). Id . (quoting W

oods v. State , 956 S.W .2d 33, 38 (Tex. Crim. App. 1997)). 1 3 Id

. (citing Adams v. W

illiams , 407 U.S. 143, 147 (1972); Hoag v. State , 728 S.W .2d 375, 1 4 3 80 (Tex. Crim. App. 1987)); see also United States v. Hensley , 469 U.S. 221, 232-33 (1985) (off icer may detain suspect based upon police bulletin so long as i s s u i n g enti ty has rea sonable suspicion to justify detention); Illinois v. Andreas , 463 U.S. 765, 771 n.5 (1983) (“[W] here law enfor ceme nt authorities are cooper ating in an i n vestig ation, the knowledg e of one is presumed share d by all.”). Derichsweiler , 348 S.W .3d at 914 (citing United States v. W h i t a ke r , 546 F.3d 902, 1 5 909 n.12 (7th Cir. 2008); United States v. Ruidiaz , 529 F.3d 2 5 (1 s t Cir. 2008); United States 6a citizen-informant who identifies himself and may be held to acc ount for the acc urac y and vera city

of his repor

t may be reg arde d as reliable .” “I n such a scena

rio, the only question is whether the 1 6
information that the known c itiz en-infor mant provides, viewe d throug h the prism of the detaining office r’s particula

r level of knowledg e and experience , objectively supports a rea sonable suspicion
to believe that crimi nal activity is afoot.” “‘A lthough an office r’s relianc e on a mere ‘hunch’ is 1 7
insufficient to justify an investiga tory stop,

. . . the likelihood of criminal activity need not rise to the level require d for probable cause .’” “A rea sonable-suspicion deter mination require s looking at the 1 8 totality of the circ umstances and rea sonable suspicion may exis t ev e n if th o s e c ir c u msta nces standing alone may

be just as consistent with innocent ac tivity as with criminal ac tivity .” 1 9
As an initial matter, we observe that Grace , i n his brief, relies primarily on case s in which the police wer e provided information by anony mous cal l er s
. Such information can be

2 0

v. Fernandez- Castil lo , 324 F.3d 1114, 1118 (9th Ci r. 2 0 0 3 ); Un ited States v. Kaplansky , 42 F.3d 320, 327 (6th Cir. 1994)).

Id . (citing Adams , 407 U.S. at 147). 1 6 Id . (citing Texas v. Brown , 460 U.S. 730, 742-43, 103 (1983) ( plurality opinion)). 1 7 Kerwick , 393 S.W .3d at 273-74 (quoting United S t a t es v. Arvizu , 534 U.S. 266, 274 1 8 (2002))

. Id . (citing Y

ork v. State , 342 S.W .3d 528, 536 (Tex. Crim. App. 2011)). 1 9 See Florida v. J.L. , 529 U.S. 266, 268 (2000) (anony mous caller reported t o police that 2 0 individual was car

ry ing firea

rm); Davis v. State , 989 S.W .2d 859, 861-62 (Tex. App.—Austin 1999, pet. ref ’d) (“unide ntified fema le caller of unknown vera city ” report ed t o police that vehicle was being driven rec klessly ); s ee a lso State v. Garcia , No. 03-14-00048- CR, 2014 Tex. App. L EXI S 9624, at *1 (Tex. App.—Austin Aug

. 28, 2014, no pet.) (mem. op., not desig nated for publication) (ca ller who identified himself only as “Eric ” had repor ted “a possible intox icated driver in line at the to-g o line” for

near by fast-f ood restaur ant). 7considere d unreliable and re quire indepe ndent cor robora tion by

the police be fore it may

support a finding of rea sonable suspicion. But, as the State corr ectly observe s, this is not a case in which the 2 1 police were rely ing on an anony mous caller

. Her e, Allen ha d provided his full name, occupation, and place of business to the 911 dispatcher , and he also indicated to the dispatcher that he would be willing to speak to the police in person if they neede d more information. Acc ording ly , the record supports a finding by the trial court that Allen was an identified citizen-informant and thus that his

acc ount would be more r eliable than a n anony mous acc ount would have be en. 2 2
The next step in the analy sis is to consider the content of All en’s acc ount. “The
‘re asonable suspicion’ nece ssary to justify such a stop ‘is depende nt upon both the content of information possessed by police and its deg ree of reliability .’” “Eve n a reliable tip will justify an 2 3 investiga tive stop only if it cr ea t es rea sonable suspicion that ‘cr iminal activity may be afoot.’” 2 4 “[T] he behavior alleg ed by the 911 caller , ‘viewe d from the standpoint of an objectively rea sonable police office r, [m ust] amount to rea sonable suspicion’ of drunk driving ” or other criminal activity

. 2 5
For example, in Navarette v. Calif ornia , a rec ent S u preme Court decision, a 911 caller repor ted
“more than a conclusory alleg ation of drunk or rec kless driving

. I nstead, she alleg ed a specific and

See A labama v. W

hite , 496 U.S. 325, 328-32 (1990); Martinez , 348 S.W .3d at 923. 2 1 See Illinois v. Gates , 462 U.S. 213, 233-34 (1983); Derichsweiler , 348 S.W .3d at 915-16. 2 2
Navarette v. Calif

ornia , 134 S. Ct. 1683, 1687 (2014) (quoting W hite , 496 U.S. at 330). 2 3 Id . at 1690 (c iting Terry , 392 U.S. at 30). 2 4 Id . (quoting Ornelas v. United States , 517 U.S. 690, 696 (1996)). 2 5 8dang erous result of the driver’ s conduct: running another car off the highw ay .” Simi larly , in Nacu 2 6

v. State , a restaur ant manag er had repor ted to a police office r th at a “woman had been in [her]
restaur ant, [t he manag er] noticed her to be intox icated, and [t he woman] had g otten in a car .” The 2 7
manag er also told the office r that the vehicle was “try ing to drive betwee n two metal poles” that wer e “not wide e noug h to allow [t he] vehicle to pass.” The San Antonio Court of Appe als conc luded 2 8
that the manag er’ s “explanation that the driver of a vehicle had previously been in her restaur ant, was intox icated, and try ing to drive throug h metal poles too narr ow to acc ommodate a car ” provided the office r with “spec ific, articula ble fac ts that would allow a revie wing court to deter mine whether [t he] detention was obje ctively rea sonable.” 2 9
I n t h i s case , althoug h Allen had not repor ted any rec kless driving , he had repor ted
to the 911 dispatcher that Gra ce “wa s a g uest at the bar,” had “lef t intox icated,” and was “sitting in his car with the lights on,” “drunk.” Allen had also repor ted to the dispatcher that he was a doorman

at the bar and that he had “urg ed [Grace ] not to drive.” Fr om this information, the dispatcher could have rea sonably inferr ed that Allen had inter acte d with Grac e while Gr ace was a t the bar or while he was leaving and that Allen had perc eived signs o f Gr ac e’s intox ication. Moreove r, althoug h Allen di d not detail to the dispatcher his personal tra ining or

experience in identify ing intoxicated individuals, he did inform the dispatcher that he was employ ed at Eg o’s, that police had previously

Id . at 1691. 2 6 See 373 S.W .3d 691, 693 (Tex. App.—San Antonio 2012, no pet.). 2 7 Id

. 2 8 Id . at 696. 2 9 9been at Eg o’s respond i n g t o ca l ls of intox icated individuals while Allen was working there , and

t h at t h e p o l ice had told Allen that “it’s alway s better to catc h them in the car befor e they leave , rathe r than waiting until they leave the proper ty and then calling the cops.” Fr om this information, combined with the information conce rning Allen’s occupation as a doorman a t th e b a r , the dispatcher could have rea sonably inferr ed that Allen had at least some prior experience identify ing intox icated individuals while working at the bar and that Allen was rely ing on that experience in concluding that
Gra ce was intox icated and should not be driving

. I n addition to these fac ts, Offic er Wright testified that he knew that the vehicle had left the bar at approxima t el y 2 : 0 0 a. m., when, Wright testified, “bar s usually close” and “they start filtering people out.” Also, Offic er Wright testified that he was familiar with this particula r bar beca use he and other office rs had responde d to calls of “[f]i g hts or public intox ication [] or DWI

. . . from that bar numerous times.” Considering the totality of the 3 0
above circ umstances, the trial court would not have err ed in concluding that Offic er Wright, working
in tandem with the 911 dispatcher , possessed specific , articula ble fac ts that, combined with rational infere nces f

rom those fa cts, would lead him rea sonably to conclude tha t Grac e had c ommitt ed the offe nse of dr iving while intoxicated and in deny ing G rac e’s motion to suppress on that g round. 3 1

“Time a nd location ar e re levant and a ppropriate considerations when doing a totality of 3 0 the circ umstances revie w to deter mine whether or not rea sonable suspicion exis ts.” Foster v. State , 326 S.W .3d 609, 613 n.10 (Tex. Crim. App. 2010).

See, e.g. , Navarette , 134 S.Ct

. at 1692; Derichsweiler , 348 S.W .3d at 9 1 4 -17; Foster , 3 1 326 S.W .3d at 614; Curtis v. State , 238 S.W .3d 376, 381 (Tex. Crim. App. 2007); Brother v. State , 166 S.W .3d 255, 257-60 (Tex. Crim. App. 2005); Tafli nger v. State , 414 S. W

. 3 d 8 8 1, 886-88 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Nacu , 373 S.W .3d at 696; see also Arvizu , 534 U.S. at 274 (cr iticiz ing lower court’s evalua tion of fac ts supporting re asonable suspicion “in isolation from eac h other” and observing that Terry “pre cludes this sort of divide-and -c o n q u er analy sis”); Tanner v. State , 228 S.W .3d 852, 858 (Tex. App.—Austin 2007, no pet.) (obser v i n g that courts should not view eac h fac t supporting stop “indepe ndently from the others” and holding that “whe n 10We overrule Gra ce’ s sole point of err or.

CONCLUSION We affir m the judgme nt of the trial cour t.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field
Affir med Filed: Aug ust 31, 2016 Do Not Publish

the time of night and location are viewed toge ther and common sense is applied to the totality of these circ umstances, we cannot conclude that the trial court err ed i n fi nding that the stop was supported by

rea sonable suspicion”)

. 11