### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 388 -CR

M at th e w Ne uge baue r , A ppe lla nt

v . The State of Texas, App ellee

FR OM T HE C OU N T Y C OU R T A T L A W N O. 2 OF HA YS C OU N T Y NO. 8541 5 , HO NORAB LE LINDA RODRI GUEZ , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N

After his pretrial motion to suppress evidenc e wa s overr uled, appe l l ant Matthew Ne u g ebaue r plea ded g uilty to driving w hile intox icated. See T e x. Pe n a l Co d e A n n . § 49.04 (West 2003). The c ourt adjudge d him guilty and asse ssed punishment at 180 day s in jail and a $6 50 fi ne , b ut t

he c ourt su sp e nd e d im

po sit ion of se nte nc e and

pla c e d a pp e lla nt o n c omm

un ity supervision. I n a sing le point of err or, appe llant contends t hat t he trial court erre d by overr uling the motion to s uppress. We find no er ror a nd aff irm the conviction. A trial cour

t’s ruling on a motion to suppress is reviewe d for an abuse of discretion. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006). Thi s m ea n s that the ruling will be

u p h e l d i f i ti s r e a s o n a

b l y s u p p o rt e d b y t h e r e c o r d

an d i s c o r r e c t u n d e r an y a

p p l i c a b l e l e g a l t h e o r

y. Id . The trial c ourt is the sole trier of fac t and judg e of the cre dibilit y of the witnesse s and the we ight to be g iven their testimony

. S t a t e v . R o ss , 3 2 S

. W

. 3d 853, 855 (Tex. Crim. App. 2000);2

Gu zm an v . S

tat e , 9 55 S.W. 2d

85 , 8 9 ( Te x. Cr im. Ap p. 19 97 ). We g ive the tr ia l c ourt a lmo st complete de fer ence in determining historical fa ct s , but we re view de novo the trial court’ s application of the law to those fa cts. Car mo uc he v . S

tat e , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000). B eca

use the trial court did not make ex plicit finding s of fa ct, we r eview the evidenc e in the light most favor able to the court’s ruling and assume the court made f indings that a

re suppor ted by the re cord a

nd buttress its conclusion. Id . at 327-28. Guada lupe Ruiz testified that afte r midnight on Marc h 17, 2007, she and he r husband

we re tr a ve lin g so uth on F M 162 6 in Hay s Co un ty wh e n th e y

no tic e d th e c ar i n f

ro nt o f t he m, a lso tr a ve lin g so uth , dr ive on to the ri g ht s ho uld e r o f t he ro a d, the n s we rv e ba c k a nd a c ro ss t he ro a d in to the on c omi nglane of

tr a ff ic . Ru iz sa id that her hu sb and , who wa s dri vin g , re mark e d, “ Oh , my g os h they ’re g oing to wr eck.” Using her c ell phone, Ruiz called 911 to repor t the rec kless driver. Ruiz ide n ti f

ie d h e r s e lf to th e 9 1 1 o p e r a to r an d r e p o rte d w h a t s h e h a d s e e n . At the hear ing, Ruiz r eca lled telling the ope rator that the suspect vehic le was a “silverish Toy ota,” but the

re c or de d 9 11 c a ll, wh ic h w a s int ro du c e d in e vid e nc e , re fl e c ts that Rui z ini tia lly de sc ri be d th e ve hic le as a “ tannish Corolla.” Shortly there afte r, Ruiz t old the operator that the vehic le was a silver seda

n,

e ith e r a To y ota or a Ma zda , a nd in t he ba c kg rou nd he r h

us ba nd c an b e he ard

say ingthat it

wa s a Malibu. As if to explain her inabilit y to prec isely identify the m ake and model of the suspe ct ca r, Ruiz told the operator, “I rea lly don’t want to g et too close.” As Ruiz continued to speak to the operator, she re ported that th e s u s p ect car w as “swe rving big time” and had a g ain moved into the oncoming lane.At one point, the dispatche r states that the “ caller has visual.” 1 3

Whe n the su sp e c t ve hic le arr ive d a t the int e rs e c tio n of F M 1 62 6 a nd F M 2 77 0, Rui z repor ted that it turned left, or east, toward Buda. She adde d, “I t’s the only car g oing that way

rig ht

no w. ” Rui z an d h e r h

us ba nd atte mpt e d to fo llo w, bu t th e y ha d to wa it at th e int e rs e c tio n a nd los t sig ht o f t he su sp e c t. R

uiz te sti fi e d that sh e and he r hu sb and dr ov e on to B ud a , b ut t

he y ne ve r a g a in saw the suspect car . Ruiz testified that a car she saw parke d at a c onvenienc e store r esembled the suspect vehic le, but she wa s not sure of this identification.

De pu t y R o b e rt W i l s o n t e s t i f i e d t h a t h e w a s p a t r o l l i n g F M 2 7 7 0 o n t h e n i g ht i n question when he hear d a dispatch repor ting a possible intox icated dr iver he ading east towa rd B uda from the FM 1626 intersec tion. Recording s of t he poli ce dispatches, also introduce d in evidence , ref lect that the dispatcher was rela y ing in r eal time the information beingprovided by Ruiz

. Wil son

1

re ca l l edb ei n g t o l d

t h at t h e s u s p ec tv eh i cl e w as a s i l v er o r b l u e fo u r- d o o r s ed an . On t h e r ec o rd i n g, the dispatche r states that the c aller descr ibed the suspec t vehicle a s a “silver colore d sedan,” “unsure if a Toy ota or a C hevy .” Wil son testified t hat as he drove west on FM 2770, he noticed an e astbound

c ar that match e d th e de sc ri pti on he ha d b e e n g ive n tu

rn int o th e pa

rk inglot of a c los e d b us ine ss, stop, and turn off its lig hts. The evidence ref lects t hat t his car was a light blue Toy ota Camry sedan. Wil son parke d his patrol car behind the Camry

and turned on his spotlig hts to il luminate the sce ne. Appellant was driving the Camry

. Wil son asked him to exit the car , and the offic er immediately

noticed sig ns of intox ication. Wils on administered stan d ar d field sobriety tests that confirme d his opinion t hat appe llant was intox icated.The pa rties have briefe d this a

ppeal on the assumption that appellant was de tained by Wil son 2 at the m ome nt t

he of fi c e r p ark e d h is p a tr ol c ar b e hin d a pp e lla nt’ s v e hic le . We wi ll a c c e pt t his assumption for the purpose s of this opinion. 4

Appellant conte nds that Wi lson’s observations a nd the other evidenc e obtained that night should ha

ve been suppressed beca

use he w as unlawf

ully detained. A police of

fice r may stop 2

and br ie fl y de ta in a pers on fo r i nv e sti g a tiv e purp os e s if the of fi c e r h a s sp e c if

ic art ic ula ble fa c ts which, tog ether

with rational infer ence s from those fa cts, lead h i m t o conclude that the per son detained is, ha s been, or soon will be eng ag ed in criminal ac tivity

. W oo ds v . S tat e , 956 S.W .2d 33, 38 (T e x. Cr im. Ap p. 19 97 ). Ap pe lla nt a c kn ow le dg e s th a t a

c iti zen -i nf

or me r’ s tip r e g ard inge rr a tic driving can be used to establish rea sonable suspicion to make a t ra ffic stop. Se e Br oth e r v . S tat e , 16 6 S. W.3 d 2 55 , 2 57 -5 8 ( Te x. Cr im. Ap p. 20 05 ); Re esing v. S tate , 140 S.W .3d 732, 736-37 (Tex. A pp.—Austin 2004, pet. ref ’d). He argues, howeve r, that Ruiz ’s information was so lac king i nd et ai l t h at W i l s o n co u l d n o t re as o n ab l y i d en t i fy ap p el l an t ’s ca r as t h e on e R u i z wa s d es cr i b i n g. Appellant points out that Ruiz did not provide the license number of the suspect ve hicle or de scribe the dr ive r. He c a lls he r d e sc ri pti on of the su sp e c t c ar “ va g ue and un c e rt a in, ” no tin g that sh e fi rs t sa id that the car was a tan Corolla, then descr ibed it a s a silver Toy ota or Mazda. Appellant also stresses that Ruiz failed to mention the num ber of doors on the suspec t vehicle. Appe llant adds that Wil son’s own observations neither cor roborated the information supplied by Ruiz nor alone g ave the office r

re a so na ble su sp ic ion

to d e ta in a

pp e lla nt. We a g re e that Rui z’s de sc ri pti on of the su sp e c t ve hic le wa s n ot a s d e ta ile d a s in so me oth e r c a se s, su c h a s Ree

sing . The e vents wer e takingplace in the middle of t he night in a rura l are a,

and Rui z an d h e r h

us ba nd we re un ders tan dably

re luc tant t o g e t c los e to a ve hic le be ingdr ive n inW i l s o n t es t i fi ed that the nig ht was “c loudy . I t was dar k and ther e wa s very

littl e lig hting 3 around that are a.” Wils on wa s a sk e d, “ Whe n y ou

say blu e . . . w a s it

lik e a mid nig ht b lue a lmo st b la c k, or is i t a 4 light blue, medium blue? ” Wilson answere d, “I believe it wa s a lig ht blue.” 5 such an e rratic manner

. Neve rtheless, Ruiz and her husband w ere able to tell t he 911 operator, and 3 thus Wil son, that the s uspect vehicle wa s a silver seda n, possibly

a Toy ota or Chevr olet, trave ling east towa rd B uda on F M 2770 from the F M 1626 intersec tion. W e also know from Ruiz’s recor ded call that it was the “ only car g oing that way rig ht now,” althoug h there is no evidence that this fact

wa s r e lay e d to Wils on . G ive n th e po or lig hti ng and the lig ht tr a ff ic a t th is l a te ho ur , a

nd ke e pin g in mind that W ilson was rec eiving hi s information from Ruiz as she repor ted it, we believe that the office r was justified in his belief that appellant’ s light blue Toy ota C amry sedan, w hich he f irst saw trave ling e ast toward B uda on F M 2770, was the vehicle be ing de scribed by Ruiz . Appellant make s much of the fac t that his car was li g ht blue, and not silver. Given how similar these two colors ca n be eve n in good lig ht conditions, thi s discrepa ncy does not signific antly

detra ct from the

re a so na ble ne ss o f Wi lso n’ s a c tio ns . 4 Although Wilson did not see appellant commit any traff ic or other criminal off

ense, he did see him drive into the parkinglot of a closed busine ss, stop, and turn off his lig hts. A lthough,

as appellant argues, there may be “a number of innocent rea sons” why appellant would do this, we believe that under the circ umstances known to Wilson, thi s conduct g ave the office r some additional

rea son to suspect that appe llant was the possibly intox icated dr iver. Finally , we n o te th a t t

w o o f a p p e ll an t’ s ar g u me n ts ar e c o n tr a d ic te d b y th e r e c o r d. F ir st, a pp are ntl y to c a st d ou

bt o n Ru iz’ s c re dib ili ty , a pp e lla nt a rgues that sh e “ ne ve r s aw D e pu tyAp pe lla nt d ro ve int o a

nd wa s d e ta ine d in

the pa rk inglot of Ce nte x Mat e ri a ls. 5 6 Wil son detain the suspec t vehicle” eve n t h o u gh she and he r husband c ontinued to drive on FM 2770 into Buda . “[S] urely ,” ar g ues appe llant, “Ruiz would have se en De puty Wil son detain the suspect vehic le” unde r those cir cumstance s. I n fac t, R u i z wa s as k ed if, a fter losing sight of the suspect vehic le, she made “any observations as t o the police be ing a round or a ny thing.” She testified that she had: “ Isaw—The re w as—Ther e’s a —like a small are a like a g rave l pit.[ ] And there wa s 5 a police c ar there that was c oming out, and it wa s—I nstead of g oing to the B uda ar ea it wa s g oing to w ar d s t h e K

y l e ar e a . ” I t i s r e a s o n a

b l e t o i n f e r t h a t t h e p o l i c e c ar R

u i z s aw w a s W i l s on ’s . Ru iz added that she did not see wha t happene d afte r that bec ause she and her husband continued to drive toward B uda. S econd, appellant ar g ues that “the re is nothing in the rec ord establishing how much time elapsed be tween the time Ruiz ca l l ed 9 11 and the time De puty Wil son detained A

ppellant.” I n fac t, the rec ord shows that Ruiz’s information was being rela y ed to Wils on as it was re ceive d. R u i z wa s a per son unconnec ted to the police who voluntar ily called 911 to r eport wh a t sh e re a so na

bly c on sid e re d to be re c kle ss d ri vin g a s sh e sa

w it ha pp e nin g . She g a ve he r n a me and conta ct information to t h e 9 1 1 o p erator, and she r emained on the phone to g ive adde d inf or ma tio n c on c e rn ingthe su sp e c t ve hic le ’s loc a tio n. I n sho rt , Ru iz’ s in fo rm a tio n w a s inhe re ntl y trustworthy

. See R eesing , 140 S.W .3d at 736. Given the hour, the suspec t vehicle’ s swervingand drifting into the oncoming la ne of tra ffic r easona

bly war rante d a suspicion that the drive r wa s intox icated. F urther, unde r the c ircumstance s shown by t h e re co rd , Ruiz ’s information wa s sufficie ntly timely and detailed to justify Wil son in the re asonable suspicion that appellant’s c ar w as the su sp e c t ve hic le . We ho ld t hat Wilson’ s initi a l de te nti on of a pp e lla nt w a s c on sti tut ion a lly7

justified. Appellant does not dispute that the office r’s subsequent observations g ave hi m l awful g ro un ds to a

rr e st. The point of er

ror is over

ruled, a nd the judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: Mar ch 24, 2009 Do No t Pu

bli sh