## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 10 - 00312 - CR

THE STATE OF TEXAS STATE V. STACIE MICHELLE KERW ICK APPELLEE

---------- FROM COUNTY CRIMINAL COUR T NO. 10 OF TARRANT COUNTY

---------- 

### OPINION

---------- I. Intro duction 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 t o 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, s everal 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 ar e. ‖ 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 testif ied 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. T he State ‘ s entire questio ning of Officer Bradford concerning his initial inves tigatory 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 dis patched there? A. In reference to a fight. Q. And did you respond to that?3

A. I did. Q. What did you k now about that fight before you got to that location? A. The details stated several people were fighting out front in f ront of th e 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 own er 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 w ritten 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. Ther e 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 start ed moving northbound. At that point I stopped it. Q. How did you s t op 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. A nd which offense do you believe they were invo l ved 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 , No s . PD

- 1238

- 10, PD

- 1239

- 10, 2 011 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 Wo rth 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. C rim. 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) applica tion

- 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 depen d 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 Investigat ive Detention A. The Law To suppress evi dence 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 burde n by establishing that a search or seizure occurred without a warrant. Id

. Once the defendant has made this showing, the burden of proof shif ts to the State, which is required to establish that the seizure was conducted pursuant to a warrant or was reaso nable. Id

. A temporary or investigative detention is a sei z ure. 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 whe n 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 detenti on is a seizure, reasonable suspicion must be shown by the7

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 tha t 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 indicatio n 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 bo th 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. A pp. — Fort Worth 2002, pet. ref ‘ d). In determining whether information possessed by police rises to the lev el of reasonable suspicion, t he 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 i n 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. Stat e , 58 S.W.3d 784, 790 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref‘d ) (balancing qu ality of information against quantity of information in the investigative stop context). Conversely, when the reliability of the information is increased, less corroborat ion 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 tha t 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 investigat ive detention of Appe llee was made without a warrant. Thus, the burden of proof shifted to the State to produce evidence that Officer Bradford ‘ s s eizure of Appellee was reasonable; that is, that Officer Bradford possessed reasonable suspicion to believe that Appellee was viol ating 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 warrant ed his investigative detention of Appellee. See i

d.; Davis , 947 S.W.2d at 242 . In doing so, we giv e 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 art icle I, section 9 of the Texas c onstitution; 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 c redibility

. See Martinez , 2011 WL 2555712, at *2

. The facts known to Officer Bradford when he initiated the w arrantless seizure of Appellee

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

—
w ere 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 12:1 9 a.m.; (3) people were standing in front of the bar when he arrived; (4) he spo ke to a person who m 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 str eet 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 who m Officer Bradford believed had called the po lice remained at the scene and spoke to Officer Bradford in a face

to

- 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. . . . A n 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 th ey are, there they are. ‖ The record does not indicate what, if anything, the person said to Officer Bradford before t he person11

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 . I n finding of fact number 4, the trial court found only that ― Officer Bradford made contact with an unidentified person who Officer Bradford believ ed was the individual who called the police. ‖ [ E mphasis added

. ] Thus, t he 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 Offi cer Bradford arrived at the bar

. Th us, 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. ‖ [ E mphasis added

. ]12

In short, t h e record before us simply contains no fact s 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

― in volved in an offense. . . [

— a] n assault, criminal mischief, or both. ‖ N o facts exist in the record to enable the trial court or this court to assess whether either of these beliefs by Officer Bradfo rd 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 opin io n is objectively reasonable. Id . Without specific, articuable facts, a detention cannot be su bjected 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 abusiv e 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 Bradfor d 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 abov e, no facts exist in the record

— as opposed to possibly in Officer Bradford ‘ s min d

— to substantiat e 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 stat ement was made face

- to

- face between a bystander and Officer Bradford, the substance of th e information provided

— at least as elicited from Officer B radford in the record before us

— does not indicate any unusual activity, does not connect Appellee to any unus ual activity, and does not indicate that any unusual activity is related to crime. See Martinez , 2011 WL 2555712, at *2 ; a ccord Derichsweiler v. State , No. PD

- 0176

- 10, 2011 WL 255299, at *6 (Tex. Crim. App. Jan

. 26 ) (holding witnesses ‘ statements to offic er 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 conclud ed : T he vague statement  ̳ there they are ‘ made by an unidentif ied person did not provide Officer Bradford with any specific articulab le facts to form reasonable suspicion that some activity out of the ordinary was occurring , or had occurred, or tha t 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 ― look ing 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 wo uld 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 Derichsweile r , 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 the y 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 applyi ng a de novo standard of review to the pure questions of law presented and to the mixed questions n ot depen ding o n 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

. T he State failed to meet its burden at the suppression hearing to adduce facts prov ing 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 F ord , 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 a rt icle I, s ection 9 of the T exas

c onstitution. We overrule the State ‘ s six points.15 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

. MC COY, J. concurs without opinion. PUBLISH DELIVERED: November 3, 2011