## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 0 0465

- CR

___________________

________

On Appea l from County Criminal Court No. 4

Denton County, Texas Tri al Court No. CR

- 2016

- 09799

- D Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth 

### C HRISTOPHER 

### L EWIS 

### R OTH 

### , Appellant

V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION In a sin gle issue, Appellant Christopher Lewis Roth appeals his c onviction for driving while intoxicated (DWI)

. S ee Tex. Penal Code Ann. § 49.04

. Roth argues that the trial court erred by de nying his motion to suppress because the offi cer’s traffic stop was cond ucted without reasonable suspicion. We agree with Roth; the State did not meet its b urden to establish re asonable suspicion. We reverse and remand

. Backg round City of Frisco p o li ce o fficer Julio Vargas was t he only wit ness at the suppre ssion hearing. Officer Var gas testified that in the early morning hours of March 20 , 2015, 9

- 1

- 1 dispatch reported “ that there were two subjects inside RaceTrac. One was in a

- - or had pulled up in a white F

- 150. The other one was in a black

- colo red SU V. Both subjects were insi de the store slurring their speech and

s tumbli ng. ” When Officer Vargas r es ponded to the call , he spotted a white Ford F

150 pulling out of the RaceTrac parking lot. Office r Vargas immediately initi ated a traf fic stop and , after an inve stigation , arrested the driver, Roth, on suspicion of DWI

. On cross

- e xamination, Offic er Vargas confirmed that the only basis for the stop was his suspicion that Roth was intoxi cated. H e tes tified that h is suspicion was based upon the info rmat ion rel ayed from the 9

- 1

- 1 dispatcher

. But w hat Officer Vargas could not state with certainty was whether the dispatcher had info rmed him before the stop that the male and female were “ stumbling and slurring ”

-3

Q. Okay. You testified that the 911 ca ll er said that a male and a female were stumbling and slurr ing. Correct? A . That ’ s correct. Q. And then they were getti ng in their cars to leave. A. That ’ s correct. Q. Did you receive the information in that ord er? A. I don ’ t remember how the orde r came in, but that

- - the information was prior to maki ng the stop. Q. It was prior to making the stop? A. I belie ve so. Q. But you ’ re not certain ? A. I ’ m not

– I ’ m not certain, but I believe so. Q. Okay. So there is a possibility that this information

- - that you did not get the information abou t slurring speech before you activated your overhead lights. A. I don ’ t know about the slurring speech. Q. And the stumbling. A. I don ’ t know if that

- - b ecause thos e two, I think, came togeth er, but I don ’ t know if that came before the stop. The i nformation that I got was that there were two intoxicated subject s and they were leaving in a white F

- 150 and a bla ck SUV. Officer Vargas admit te d that he did not state in his appli cation for a DWI blood draw that h e detained Roth after l earning that he was “ stum bling and slurring ” inside the RaceTrac. A nd a lthou gh Officer Vargas suggested that he may have4

included the “ stumbling or sl urring ” inf ormation in the report he p repared after the stop, other i nformation in the record s uggests to the contrary. A t the conclusion of the evidence , Roth ’ s attorney argued tha t neither the report nor the affidavit in support of the warr ant contained any information about the t iming of the “ stumbling and sl urring ” evidence

– In rea ding through [Officer Vargas ’ s] report, reading through his affidavit for the search warrant, he d oes no t give one single articulable fact to support reasonable s uspicion. He doesn ’ t mention slurring . He doesn ’ t mention stumbling. I pinned the officer down to confirm the reason that he stopped Mr. Roth, and he said the reason was because of an into xication

- - intoxicated persons ca ll. I asked if there were an y other rea sons. He said no. Other r easons would have been a report of someone stumbling, sl urring, articulable facts. He didn ’ t have any o f them. The state did not object to counsel ’s s tatement or refute his contention in rebuttal argument . And t he r eport was not admitted into evidence

. To the extent that the 9

- 1

- 1 recording could have shed light o n the timing of the “ s tumbling and slurr ing ” information, it too was not admitted into ev idence

. At the end o f the hearing, t he trial court foun d that Offi cer Vargas did not have the “ stumbling and slurring ” information at the time he sto pped Roth. In denying the motion to suppress , the trial court stat ed, I ’ m taking the po sition that . . . Officer Vargas . . . d oes not h a ve the stumbling or the slurred spe ech in his information at t he time he stop ped [Roth]

. . . . But my interpretation of Der ichsweiler and these cases are if law enforceme nt a s a whole has that information, whether he has i t or not, it ’ s counted t owards the

- - being not just co nclusory , b ut being enough for reasona ble suspicion.5 So I am finding that there was reasonabl e suspicion for the stop

. The tr ial court later enter e d findings of fact an d conclusions of law that incl uded the following relevant findings and con clusions: 3

. Office r Vargas testified before this Court at a hear ing on defendant ’ s Motion to Suppress. The Court finds his testimony to be credible in all resp ects.

. . . 5. On March 20, 2015, at approximat e ly 1:36 a.m., F risco PD 911 dispatch receive d a 911 c al l from Cameron Soller, [ 1 ] a n employee of t he RaceTrac located at 474 0 Main Street, F ris co, Texas

. 6. The caller reported that two intoxicated individ uals had been s tumbling around and s lurring their s peech inside of the RaceTrac and were leavin g the st ore in their respective vehicl es. 7. Unaware of the in formation in 5. & 6. above, Of ficer Vargas heard the 911 dispatcher advise of an in toxicated pers ons call located at 4740 Main Street, Frisco , Texa s . 8. Officer Vargas was notified by the di spatcher th at one of the intoxicated i nd ividuals had gotten into a white pick

- u p truck and was heading out from 4740 Main Street onto Legacy Drive

.

1 This findin g is unsupported by the record

— the RaceTrac em ployee was never identified by name d uring the hearing or in any exhibits admitted into evidence at the hearing. The State dismisses this discrepancy by arg uing that a witness stat ement attached to Officer Var gas ’ s probable cause af f idavit and file d in th e trial court was “ availabl e to the t rial court ” and to Roth

. But at no point did the t rial court take judi cial notice of its file (nor did the State make such a request ) and the S tate mad e no attempt to offer this witn ess stateme n t into evide nce. O n app eal, the State offers no au thority for its argum ent that everything contained in th e trial record should be considered on appeal to fill in the holes in the State ’ s pro of at a hearing. We decline to apply that standard

.6

9. Upon arriva l at the RaceTrac, Officer Vargas observed a wh i te Ford F

- 150 leaving the parking lot of 4740 M ain Street and heading northbound on L egacy Drive. 10. Officer Vargas observed the ve hicle m ake a U

- tu rn to head southbound on Legacy Drive to war d Main Street. 11. Due to the 911 call regarding a potentia l ly intoxicated driver, Officer Vargas initiated a tra ffic stop o n the white truck for suspicion of driving while intoxi cated

.

. . . . CONCLUSIONS OF LAW

. . . . 2. A temporary detention, under t he Fourth Amendment, is justified when the officer has sp e cific articulable facts which, taken to gether wi th rational inf

erences from thos e facts, lead the officer to conclu de that the pers on detained is, has been, or soon will be engaged in criminal activ ity. Terry v. Ohio , 392 U.S. 1 (1968). 3. The detaining officer need not be personally awa re of every fa ct that objectively support s a reasonable suspicion to detain; rather, “ the cumulat ive information known to the co operating officers at the time of th e stop is to be co nsidered in determining whether reasona b le suspicion exists. ” Deric

hsweiler v. State , 3 48 S.W.3d 906, 914 (Tex. Cr im. App. 2011). A 911 police dispatcher is ordinarily r egarded as a “ cooperating officer ” for purposes of making this deter mination. Id. 4. Information p rovided to police from a citi zen
- informa nt w ho identifie s him self and may be held to account for acc uracy and veracity of his report may be regarded as reli able. Id. at 914

- 15

. [sic ] 5. Here, Frisco PD 911 dispatcher was aware that an identified 9 11 caller was reporting an int o xicated person slurring his speech an d stumbling inside of the caller ’ s plac e of employment and attempting to d rive away. 6. T h e se facts, when combined with rational in ference from thos e facts, led officer Vargas to reasonably detain defendant for drivi n g while intoxicated.7

7. As a result , the Cou rt finds that Officer Vargas h ad sufficient reasonable suspicion to pull over and te mp orarily detain defendant. D iscussion I. Standard of r evie w We apply a bifurcated standard of review to a trial court’s ru li n g on a mo tion to suppress evidence

. Amador v. State , 221 S.W.3d 666, 673 ( Tex. Crim. App. 2 0 07); Guzman v. State , 955 S.W.2d 85, 89 ( Tex. Crim. App. 1997)

. I n reviewing the trial court’s decis ion, we do not engage in our own factual review

. Romero v. S t ate , 800 S.W.2d 539, 543 (

Tex. Crim. App. 1990); Best v. State , 118 S.W.3d 857, 861 ( Tex. Ap p . — Fort Worth 2003, no pet.)

. The trial judge is the sole trier of fact and judge of the witnesses’ c redibility and the weight to be given their testimony

. Wie de v. State , 214 S.W.3d 17, 24

– 25 (

Tex. Crim. App. 2007)

. Therefore, we defer almost totally t o the trial court’s rulings on ( 1) questions of historical fact, ev en if the trial court determined those facts on a basis other than evaluating credibility and de m eanor, an d ( 2) application

- of

- law

- to

- fact questions that turn on evaluati ng credibility and d emeanor . Amador

, 221 S.W.3d at 673; Montanez v. State , 195 S.W.3d 101, 108

– 09 ( Tex. Cr im. App. 2006); Johnson v. State , 68 S.W.3d 644, 652

– 53 ( Tex. Crim. App. 20 0 2)

. But when application

- of

- law

- to

- fact questions do not turn on the witnesses’ credibility and demeanor, we review the trial court’s rulings on those questio ns de novo . Amador

, 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 ( Tex. Crim. App. 2 0 05); John son , 68 S.W.3d at 652

– 53.8

Stated another way, when reviewing the trial court’s rul i ng on a suppression motion, we must view the evidence in the light most favorable to the ruling

. Wiede , 214 S.W.3d at 24; State v. Kelly , 204 S.W.3d 808, 818 ( Te x . Crim. A pp. 2006)

. When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court ’s ruling, supports those findings

. Kelly , 204 S.W.3d at 818

– 19

. We then review the tr ia l court’s legal ruling de novo unless its explicit fact findings that are supported by the re c ord are also dispositive of the legal ruling

. Id. at 818. Even if the trial court gave the wrong reason for its ruling, w e must uphold the ruling if it is both s u pported b y th e record and correct un der any applicable legal theory

. State v. Stevens , 235 S .W.3d 736, 740 ( Tex. Crim. App. 2007); Armendariz v. State , 123 S. W.3d 401, 404 ( Tex. Crim. App. 2003). II. The Fourth Amendment and r easonable s uspicion The F ou r th Amendm ent protects against unreas onable searches and seizure s by government officials. U .S. Const. amend. IV; Wiede , 214 S.W.3d at 24. A defendant seeking to suppress evidence on Fourth Amendm ent grounds bears the initial burden to produce some evi de n ce that t he government conducted a w arrantless search or seizure that he has standing to con test . State v. Martinez , No. PD

- 0324

- 17, 2019 WL 137754, at *1 (Tex. Crim. App. Jan. 9, 2019) (quoting R ussell v. State , 717 S.W.2d 7, 9 (Tex . Crim. App. 1986), d i savowed i n part on other grounds by Handy v. State , 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006)); Handy , 189 S.W.3d at 298

– 99; see ,9

e.g. , Rawlings v. Kentucky , 448 U.S. 98, 104

– 05, 100 S. Ct. 25 56, 2561 (1980) . Once the defendant does so , the burden s h ifts to t he State to prove either th at the search or seizure was con ducted pursuant to a war rant or, if warrantless, was otherwise reasonable. Martinez

, 2019 WL 137754, at *1 (quoting Russell , 717 S.W.2d at 9); Amador , 221 S.W.3d at 672

– 73

. A detention , a s opposed to an arrest, may be justi fied on less than probable cause if a person is reasonab ly suspected of criminal activity based on specific, articulable facts

. Terry v. Ohio , 392 U.S. 1, 21 , 8 8 S. Ct. 1868, 1880 ( 1968); Carmouche v. State , 10 S.W.3 d 3 23, 328 ( Tex. Crim. App. 2000)

. An officer conducts a lawful temporary detention when he re asonabl y suspects that an individual is violating the law

. Crain v. State , 315 S.W.3d 43, 52 ( Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 448, 492 (

Tex. Cr im

. App. 2005)

. Reasonable suspic ion exists w hen, based on the totality of the circumstances, the officer has specific, articula ble facts that , when combined with rational inferences from those facts, would lead him to reas onably

con clude that a particula r p erson is, has been, or soon wil l be engaged in criminal activity

. For

d , 158 S.W.3d at 492

. This is an objective standard tha t disregards the detaining officer’s subjective intent and looks solely to whether the officer has an obj ective basis for the s to p . Id. The detaining officer ne ed not be pe rsonally aware of every fac t that objectively supports a reasonable suspicion to d e tain; rather, “ the cumulative information known to the c oo perating officers at the time of the stop is to be considered in dete rm i ning10

whether reasonable suspici on exists. ” Deri ch s weiler v. State , 34 8 S.W.3d 906, 914 (Tex. Crim. App. 2011 ) ( citing Adams v . Williams , 407 U.S. 143, 147, 92 S. Ct. 19 21, 1924 (1972) ; and quoting Hoag v. State , 728 S.W.2d 375, 38 0 (Tex. Crim. App. 198 7) )

. 9

- 1

- 1 police dispatchers are ordin arily regarded as cooperating off icers for purposes of reasonable

- suspicion determinati on s. Id. An d information provided to police “ from a citizen

- info rmant who i dentifies himself and may be h e ld to account for the a c curacy and veracity of his repo rt may be re garded as reliable. ” Id. a t 914

– 15 ( citing Adams , 40 7 U.S. at 147 , 92 S. Ct. at 19 24 ). Our only question in such a scenario is “ whether the information that the known citize n
- informant p r ovide[d], viewed thro ug h the prism of the detaining off icer ’ s parti cular level of knowledge an d experience, objecti vely supports a re asonable suspicio n to believe that criminal activity is afoot. ” Id. (internal citation omitted). III. Application W e a g ree with the trial co ur t ’ s conclusion that the 9

- 1

- 1 d i s patch er wa s a

“ cooperating officer ” an d, as such, the dispa tc her ’ s k nowledge was imputed to Of ficer Vargas

. See id. at 914. But here we must specificall y focus on the 9

- 1

- 1 dispatcher ’ s knowledge prior to Officer Vargas ’ s detention of Roth. See id. (re ci ting that the cumulative information known “ at the time of the stop ” is to be considered in d etermining whether reasonable suspicion e xists )

. The State carried the burden to establ ish that the 9

- 1

- 1 dispat c her knew , pri or to the de tention , s pec ific , art icula ble fac ts that, when combined with reasonable infe rence , would lead a n officer to11

reasonab l y conclude that a particular p erson is, has been, or soon will be engaged in criminal activity. See Ford , 158 S

. W.3d at 492. A report o f someone “ being intoxi cated ” is a subjective determination th at does not prov ide the specific , articula ble facts nece ssary to establish reasonable suspicion. See Castro v. State , 227 S .W.3d 737, 742 (Tex. Crim. App. 2007). Whe t her the 9

- 1

- 1 d i spatcher knew that t he RaceTrac employee ha d observed Roth and his acc omplice “ slurring words and stumbling ” and reported that fact to 9

- 1

- 1 before Officer Vargas detained Roth (or at all) is not est ablished in th e record before us. Neith e r t he 9

- 1

- 1 d is p atcher nor the RaceTrac employe e testif ied at the hearing. The State did not offer a recording of the 9

- 1

- 1 call into evidenc e. The sole basis f or the trial court ’ s finding that “ The caller reported that two intoxicated individuals had b e en s tumbling ar o und and slurring their spe ech i nside of the RaceTrac and were leaving the store in their respective vehicles ” was Officer Varg as ’ s testimony. But no t only did Officer Vargas ’ s testimony not establ ish when he knew that fac t

— which the tr ial court acknowled g ed in its find ings

— Officer Vargas ’ s testimony also fe ll short of establishing even when the 9

- 1

- 1 dispatcher knew that information

. According to Officer Vargas, the earliest that he would have made a note about Roth ’ s “ stumbling or slu rring ” would have b e en after he ha d already

“ m ade contact ” with Roth , and the record does not indicate that any note to that effe ct was ever made

.12

The State asks us to disregard the se disc r epancies because Roth ’ s cross
examination established that he w as aware of a “ call sheet ” or “ post

- r un call report ” detailing t he dispatcher ’ s communication with the caller and office rs in the field, and that “ [i]f [Roth] had de finiti ve evidence that the c aller did not report stumbling and slurring unt

il afte r the stop, presum ably from t he ca ll sheet, he failed to int roduce t hat

e vidence into the record. ” In making such an argument, the State invites us to reverse the burden of proof. It was the State ’ s burden

— not Roth ’ s — to establ ish reasonable

su spicion. S e e Martinez

, 2019 WL 137 754, a t *1 ; Amador , 221 S.W.3d at 672

– 7 3

. We
t herefore reject this a rgument . The evidence s howed nothing more than that a t some time before Roth was detained by Officer Vargas , a RaceTrac employee rep orted to 9

- 1

- 1 the presence of
two intoxicated perso ns in the st ore , one of whom was about to drive a way in a white F

- 150

. Because t his is not suf ficient to establish reasonable suspicion , s ee Castro , 227 S.W.3d at 742 , w e sustain Roth ’ s sole issue on appeal

. Conclusion H aving sustained Roth ’ s sole issue on ap p eal, w e reverse the trial court ’ s judgment and remand this case for fu rther proceeding s c onsistent with this opinion. /s/ Bonnie Sudderth Bonni e Sudderth Chief Justice Do Not Publish Tex. R. App. P. 47.2(b)13

Delivered : August 26, 2019