COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00312-CR

THE STATE OF TEXAS STATE

V.

STACIE MICHELLE KERWICK APPELLEE

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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

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OPINION

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I. Introduction

In this State‘s appeal, the primary issue we address is whether the trial 

court abused its discretion by granting Appellee Stacie Michelle Kerwick‘s motion 

to suppress. Based on the standard of review that we are required to apply, we 

cannot hold that the trial court‘s ruling was outside the zone of reasonable 

disagreement. Accordingly, we will affirm the trial court‘s suppression ruling.
2

II. Factual Background

At around 12:19 a.m., Fort Worth Police Officer Jeffrey J. Bradford was 

dispatched to a bar on North Main Street in Fort Worth in response to a call 

about several people fighting in front of the bar. When Officer Bradford arrived at 

the bar, several people were standing outside in front of the bar. Officer Bradford 

made contact with the person he believed to be the person who had called the 

police. The person was the owner of a damaged vehicle. That person pointed to 

a vehicle parked on the street across from the bar and said, ―There they are right 

there. There they are, there they are.‖ Officer Bradford walked over to the 

vehicle as it started moving northbound on the street and stopped the vehicle by 

yelling at the driver, ordering her to stop. Officer Bradford testified that he 

―believed that they—at that point they were involved in an offense.‖ 

Appellee was charged with driving while intoxicated. She filed a motion to 

suppress. At the suppression hearing, Officer Bradford was the only witness to 

testify, and no exhibits were admitted into evidence. The State‘s entire 

questioning of Officer Bradford concerning his initial investigatory detention of 

Appellee—after predicatory questions establishing Officer Bradford‘s 

employment history and that he was dispatched to the bar at 12:19 a.m.—was as 

follows:

Q. And why were you dispatched there?

A. In reference to a fight.

Q. And did you respond to that?
3

A. I did.

Q. What did you know about that fight before you got to that 

location?

A. The details stated several people were fighting out front in front 

of the bar.

Q. And when you got there did you see several people outside?

A. Yeah. There were several.

Q. And did you make contact with anyone?

A. Yes, the—I believe it was the person who called the police. 

There was a vehicle that was damaged there. He was the owner of 

the vehicle that was damaged.

Q. Okay. And did you see the damaged vehicle there?

A. I did.

Q. And did you speak to that person?

A. Yes.

Q. And do you know who that person was?

A. I have it written down here.

Q. So you—you do have it written down?

A. Yes.

Q. So that person was identified to you?

A. Right.

Q. And what did—what did that person say to you?
4

A. He pointed at a vehicle, which was parked across the street and 

pointed at it and said, ―There they are right there. There they are, 

there they are.‖

Q. When you say across the street, where was that vehicle parked?

A. Directly across from the [] bar on the east side of the roadway, 

facing northbound.

Q. Okay. And so is this—is this in the Stockyards?

A. It is.

Q. And is that—was that car parked in the street or in the parking 

lot?

A. It was in the street.

. . . .

Q. Okay. So the witness said, ―There they are,‖ and what did you 

do?

A. I—I was on foot at this point. I walked over to the vehicle as it 

started moving northbound. At that point I stopped it. 

Q. How did you stop it?

A. Ordered the driver to stop the vehicle. I yelled at her.

Q. Why did you do that?

A. Because I believed that they—at that point they were involved in 

an offense.

Q. And which offense do you believe they were involved in?

A. An assault, criminal mischief, or both.
5

The trial court granted Appellee‘s motion to suppress and, upon request by the 

State, issued findings of fact and conclusions of law.1 

III. Standard of Review

In review of a trial court‘s ruling on a motion to suppress, we apply an

abuse of discretion standard and overturn the trial court‘s ruling only if it is 

outside the zone of reasonable disagreement. Martinez v. State, Nos. PD-1238-

10, PD-1239-10, 2011 WL 2555712, at *2 (Tex. Crim. App. June 29, 2011). In 

reviewing the trial court‘s decision, we do not engage in our own factual review. 

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 

118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is 

the sole trier of fact and judge of the credibility of the witnesses and the weight to 

be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 

2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, we 

give almost total deference to the trial court‘s rulings on (1) questions of historical 

fact, even if the trial court‘s determination of those facts was not based on an 

evaluation of credibility and demeanor, and (2) application-of-law-to-fact 

questions that turn on an evaluation of credibility and demeanor. We apply a 

bifurcated standard of review, giving almost total deference to a trial court‘s 

determination of historic facts and mixed questions of law and fact that rely upon 

the credibility of a witness and applying a de novo standard of review to pure 

 

1

The trial court‘s findings of fact and conclusions of law are attached to this 

opinion. 
6

questions of law and mixed questions that do not depend on credibility 

determinations. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); 

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Estrada v. 

State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 

644, 652–53 (Tex. Crim. App. 2002). 

IV. Reasonable Suspicion for an Investigative Detention

A. The Law

To suppress evidence on an alleged Fourth Amendment violation, the 

defendant bears the initial burden of producing evidence that rebuts the 

presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. 

Crim. App. 2005). A defendant satisfies this burden by establishing that a search 

or seizure occurred without a warrant. Id. Once the defendant has made this 

showing, the burden of proof shifts to the State, which is required to establish 

that the seizure was conducted pursuant to a warrant or was reasonable. Id. 

A temporary or investigative detention is a seizure. Francis v. State, 922 

S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 

(Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d). An investigative detention 

occurs when an individual is encountered by a police officer, yields to the officer‘s 

display of authority, and is temporarily detained for purposes of an investigation. 

Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Because an 

investigative detention is a seizure, reasonable suspicion must be shown by the 
7

officer to justify the seizure. State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. 

App. 2000). 

An officer conducts a lawful temporary detention when he has reasonable 

suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 

492. ― ̳[T]he police officer must be able to point to specific and articulable facts 

which, taken together with rational inferences from those facts, reasonably 

warrant that intrusion.‘‖ Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 

1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). The 

articulable 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 a crime. Martinez, 2011 WL 2555712, at *2. Articulable facts must 

amount to more than a mere inarticulate hunch, suspicion, or good faith 

suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. 

Crim. App. 2010).

In deciding whether reasonable suspicion existed, we look at the facts 

available to the officer at the time of the detention. Id. Whether the officer‘s 

suspicion to believe that an individual is violating the law is reasonable is

evaluated based on ―an objective standard that disregards any subjective intent 

of the officer making the stop and looks solely to whether an objective basis for 

the stop exists.‖ Ford, 158 S.W.3d at 492. We are to take into account the 

totality of the circumstances in order to determine whether reasonable suspicion 

existed for the stop. Martinez, 2011 WL 2555712, at *2.
8

The totality of the circumstances includes both the content of the 

information possessed by the police and its degree of reliability. Alabama v. 

White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990); Martinez, 2011 WL 

2555712, at *2; Blevins v. State, 74 S.W.3d 125, 130–31 (Tex. App.—Fort Worth 

2002, pet. ref‘d). In determining whether information possessed by police rises 

to the level of reasonable suspicion, the quality of the information possessed is 

weighed against the quantity of information possessed. See Rojas v. State, 797 

S.W.2d 41, 43 (Tex. Crim. App. 1990) (balancing quality of information against 

quantity of information in the probable cause context); Blevins, 74 S.W.3d at 130. 

That is, a weakness in the quality of the information possessed may be 

overcome by the requisite quantity of corroborating facts demonstrating the 

reliability of the information. See Smith v. State, 58 S.W.3d 784, 790 (Tex. 

App.—Houston [14th Dist.] 2001, pet. ref‘d) (balancing quality of information 

against quantity of information in the investigative stop context). Conversely, 

when the reliability of the information is increased, less corroboration is 

necessary. See Martinez, 2011 WL 2555712, at *2; State v. Sailo, 910 S.W.2d 

184, 188 (Tex. App.—Fort Worth 1995, pet. ref‘d). 
9

B. Application of the Law to the Present Facts

The State raises six points in this appeal; each point alleges that the trial 

court erred by granting Appellee‘s motion to suppress.2 The State argues the six 

points together in its brief, and we likewise address them together in this opinion.

The State stipulated that Officer Bradford‘s investigative detention of 

Appellee was made without a warrant. Thus, the burden of proof shifted to the 

State to produce evidence that Officer Bradford‘s seizure of Appellee was 

reasonable; that is, that Officer Bradford possessed reasonable suspicion to 

believe that Appellee was violating the law. See Ford, 158 S.W.3d at 492. 

Officer Bradford was the only witness to testify at the suppression hearing, and 

no exhibits were admitted into evidence, so we examine Officer Bradford‘s 

testimony to determine whether the State elicited from him specific and 

articulable facts that reasonably warranted his investigative detention of 

Appellee. See id.; Davis, 947 S.W.2d at 242. In doing so, we give almost total 

deference to the trial court‘s determination of historic facts and mixed questions 

 

2

The State‘s points allege that the trial court erred by granting Appellee‘s 

motion to suppress because (1) the trial court erroneously determined that 

Officer Bradford did not possess reasonable suspicion for an investigative stop; 

(2) the trial court‘s ruling runs afoul of Terry v. Ohio; (3) the trial court‘s ruling 

runs afoul of Texas Court of Criminal Appeals‘s case law, including Derichsweiler 

v. State; (4) the trial court‘s ruling violates the Fourth Amendment; (5) the trial 

court‘s ruling violates article I, section 9 of the Texas constitution; and (6) the trial 

court‘s ruling was erroneous because Officer Bradford‘s decision to stop 

Appellee was objectively reasonable based on the totality of the circumstances. 
10

of law and fact that rely upon Officer Bradford‘s credibility. See Martinez, 2011 

WL 2555712, at *2.

The facts known to Officer Bradford when he initiated the warrantless 

seizure of Appellee—at least the facts that are set forth in the record before us—

were that (1) someone had called the police to report people fighting in front of a 

bar on the north side of Fort Worth; (2) Officer Bradford was dispatched to the 

scene at 12:19 a.m.; (3) people were standing in front of the bar when he arrived; 

(4) he spoke to a person whom he believed was the person who had called the 

police; (5) that person had a damaged vehicle; and (6) that person pointed to a 

vehicle parked on the street across from the bar and said, ―There they are right 

there. There they are, there they are.‖ As the vehicle was driving away, Officer 

Bradford initiated a temporary investigative detention by yelling at the driver, 

Appellee, and ordering her to stop.

The State points out that the person whom Officer Bradford believed had 

called the police remained at the scene and spoke to Officer Bradford in a faceto-face encounter and argues that the totality of the circumstances are sufficient 

to support Officer Bradford‘s suspicion that he ―believed that they [the people in 

the vehicle] -- at that point they were involved in an offense. . . . An assault, 

criminal mischief, or both.‖ The record before us, however, does not indicate 

what, if anything, Officer Bradford said to the person before the person said, 

―There they are right there. There they are, there they are.‖ The record does not 

indicate what, if anything, the person said to Officer Bradford before the person
11

said, ―There they are right there. There they are, there they are.‖ In fact, the 

record does not establish that the person who said, ―There they are right there. 

There they are, there they are,‖ was the person who called the police. In finding 

of fact number 4, the trial court found only that ―Officer Bradford made contact 

with an unidentified person who Officer Bradford believed was the individual who 

called the police.‖ [Emphasis added.] Thus, the trial court found only that Officer 

Bradford believed this was the individual who called the police, not that it was in 

fact the person who had called the police. Officer Bradford never testified 

concerning the name of the person at the scene or the name of the person who 

had called the police.

The record before us does not indicate when Officer Bradford arrived at 

the bar. He was dispatched at 12:19 a.m., but the record does not indicate 

whether he arrived ten minutes after he was dispatched or one hour after he was 

dispatched. The record does not indicate how Officer Bradford determined that 

the person who said, ―There they are right there. There they are, there they are,‖

was the owner of a damaged vehicle. The record does not indicate whether the 

person‘s vehicle was already damaged when the person arrived at the bar, was 

damaged at the bar, was damaged during the fighting, or was in an accident at or 

near the bar before Officer Bradford arrived at the bar. Thus, in finding of fact 

number 11, the trial court found that Officer Bradford ―believed that the occupants 

of the vehicle were involved in either an assault, criminal mischief, or both.‖ 

[Emphasis added.] 
12

In short, the record before us simply contains no facts to enable either the 

trial court or this court to objectively evaluate either Officer Bradford‘s belief that 

the person who said, ―There they are right there. There they are, there they are,‖

was the person who had called the police or his belief that Appellee was 

―involved in an offense. . . [—a]n assault, criminal mischief, or both.‖ No facts 

exist in the record to enable the trial court or this court to assess whether either 

of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158 

S.W.3d at 493. Without specific, articulable facts, a court has no means of

assessing whether an officer‘s opinion is objectively reasonable. Id. Without 

specific, articuable facts, a detention cannot be subjected to the more detached, 

neutral scrutiny of a judge who must evaluate the reasonableness of a particular 

seizure in light of the particular circumstances. Id. And when such a stop is not 

based on objective criteria, the risk of arbitrary and abusive police practices 

exceeds tolerable limits. Id. Allowing a police officer‘s opinion to suffice in 

specific facts‘ stead eviscerates Terry‘s reasonable suspicion protection. Id. 

The State nonetheless argues that because the person that Officer 

Bradford believed had called the police remained at the scene and spoke to 

Officer Bradford in a face-to-face encounter, Officer Bradford‘s beliefs were 

reasonable. As set forth above, no facts exist in the record—as opposed to 

possibly in Officer Bradford‘s mind—to substantiate Officer Bradford‘s belief that 

this person was the person who had called the police. Assuming, however,

enhanced reliability of the statement, ―There they are right there. There they are, 
13

there they are,‖ based on the fact that the statement was made face-to-face 

between a bystander and Officer Bradford, the substance of the information

provided—at least as elicited from Officer Bradford in the record before us—does 

not indicate any unusual activity, does not connect Appellee to any unusual 

activity, and does not indicate that any unusual activity is related to crime. See

Martinez, 2011 WL 2555712, at *2; accord Derichsweiler v. State, No. PD-0176-

10, 2011 WL 255299, at *6 (Tex. Crim. App. Jan. 26) (holding witnesses‘

statements to officer indicated unusual activity, connected Derichsweiler to the 

unusual activity, and related to future criminal activity), cert. denied, 2011 WL 

4530673 (2011).

3

 The trial court therefore concluded:

The vague statement  ̳there they are‘ made by an unidentified 

person did not provide Officer Bradford with any specific articulable

facts to form reasonable suspicion that some activity out of the 

ordinary was occurring, or had occurred, or that the detainee had a 

 

3

In Derichsweiler, the court of criminal appeals held that the witnesses‘ call 

to police and face-to-face recitation to police at the scene that around 8 p.m., a 

man had driven by them twice while they were in a McDonald‘s drive-through 

lane, was ―looking straight at [them],‖ ―kind of grinning,‖ ―for between thirty 

seconds to a minute,‖ had driven into the adjacent Wal-Mart parking lot, and was 

engaging in similar behavior there constituted ―specific, articulable facts that, 

combined with reasonable inferences to be derived from those facts, would lead 

to the reasonable conclusion that the appellant was committing or soon would be 

engaged in some type of criminal activity.‖ 2011 WL 255299, at *1, *5. Thus, in 

Derichsweiler, witnesses reported to the police the behavior that they had 

personally observed the defendant engage in. See id. at *1. Here, the person at 

the scene either did not report to Officer Bradford what conduct he had observed 

Appellee engage in, or the State simply failed to elicit this testimony from him. 

Either way, this case is distinguishable from Derichsweiler because, unlike the 

record in Derichsweiler, the record in this case contains no testimony by Officer 

Bradford as to what conduct, if any, the person at the scene supposedly 

observed Appellee engage in. 
14

connection with the unusual activity. ―There they are‖ does not 

identify who ―they‖ are, nor what crime, if any, ―they‖ had committed.

Deferring as we must to the historical facts found by the trial court and mixed 

questions of law and fact that rely upon the credibility of Officer Bradford, and 

applying a de novo standard of review to the pure questions of law presented 

and to the mixed questions not depending on Officer Bradford‘s credibility, we 

cannot hold that the trial court acted outside the zone of reasonable 

disagreement in granting Appellee‘s motion to suppress. See Martinez, 2011 WL 

2555712, at *2. The State failed to meet its burden at the suppression hearing to 

adduce facts proving under an objective standard, disregarding any subjective 

intent of Officer Bradford, that Officer Bradford‘s suspicion or belief that Appellee 

was violating the law was reasonable. See Ford, 158 S.W.3d at 493. 

Consequently, the trial court‘s suppression ruling comports with the requisites of 

Terry v. Ohio, the Fourth Amendment, and article I, section 9 of the Texas 

constitution. We overrule the State‘s six points.
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V. Conclusion

Having overruled the State‘s points, we affirm the trial court‘s order 

granting Appellee‘s motion to suppress.

SUE WALKER

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

MCCOY, J. concurs without opinion.

PUBLISH

DELIVERED: November 3, 2011