### 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. 03-10-00136- CR

Styron Earl Hale, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F H AY S CO UNTY NO. 090 720, H ONO RAB LE LINDA ANN RO DRIGUEZ , 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 Sty ron Earl Hale pleade d no contest to the offe nse of marihuana possession in an amount of two o u n ce s o r l es s. Punishm ent was assessed at 10 day s in jail. I n a single issue on appea l, Hale arg ues that the trial court should have g rante d his motion to suppress beca use the arr esting off

i ce r d i d n o t have

rea sonable suspicion to detain him. We will affirm the tria l court’s judg ment.

BACK GR OUND The only witness at the suppression hear ing was the arr esting office r, Offic er Scott J ohnson of the San Marc os Police Depa rtment. J ohnson testified that at approximately
12:57 p.m. on Augus t 3 1 , 2 008, he rec eived a dispatch to the are a of a “small park” located on the corne r of Third Street and Mill Street. The dispatch was based on an anony mous telephone call descr ibing what J ohnson char acte rized as a “male/f emale disturbance .” Specifica lly , acc ording toJ ohnson, “the c all came out as a male subject on a bic y cle, a nd the couple w as fig hting or arg uing

near a Saturn vehicle.” J ohnson, who had 19 y ear s’ experience working for the San Marc os Police Depa rtment, testified that a “male/f emale disturbance ” usually indicated “a domestic situation; like boy friend/g irlfriend, husband/wife.” Acc ording to J ohnson, “[R] outinely

. . . it ’ s a g u a r ded situation; tensions are usually high. Oftentimes t h er e has been violence or may be continued violence, so it’s an eleva ted priority call.” J ohnson added that “domestic violence situa t ions are notoriously dang erous.”
J ohnson testified t hat he o b s er ved the following when he arr ived at the l ocation of the alleg ed disturbance : “And when I came around the corne r—I was the only off i cer there —the first thing I

saw wa s the S aturn vehicle, a subject near a bicy cle, and the—they wer e in ver

y close proxi mity like they wer e either prese ntly arg uing or had been arg uing, and the fema le was rathe r disheveled and looked like she was wiping tear s awa y .” When the couple saw J ohnson arr ive, “the male subject, who was eventua lly identified as Mr. Hale, picked up his bike and beg an moving awa y fr o m m e d es p i te my repe ated verba l commands for him to stay put so that I could speak to him.” When asked why he wanted Hale “to stay put,” J ohn s o n testified, “Well, I neede d to investiga te whether or not there had bee n a cr ime committed, in this case an assa ult.” Hale “continued to move awa y ” from J ohnson, despite repe ated i n structions for him to stop. Meanw hile, J ohn s o n ex p l ai n ed, “the fema le beca me very verba l and beg an walking

over in my direc tion, which is another conce rn, beca use it’s not terribly uncommon to have the tables turned a nd have the ag g ression direc ted at the of fice r; that has happe ned many times in the past.”
At the same time, J ohnson testified, “a third subject,” an unidentified male, beg an ap p ro ac h i n g

2J ohnson “fr om down the street.” Acc ording to J ohnson, this person’ s “emotions we re clea rly eleva ted, he was y elling something, which I couldn’t understand. I didn’t know who he was y elling at, but he wa s part of the situation and coming in our direc tion.” J ohnson continued,

I told Mr. Hale ag ain to stop. He said he didn’t need to stop, he hadn’t done any thing wrong , there was no rea son for him to talk to me. I pulled out my Taser and took it off safe ty and—which then produce s a laser sight, put the sight on him and said, “Stop. Follow my commands or y ou will be tased.” He said he didn’t have to stop. He seeme d as if momentarily he was g oing to c omply , and then he thought about it for a second, and then I g uess he decide d he hadn’t done any thing and he didn’t have to stay and talk to me. So he wa s tased.

After additional o f

f ic e r s a rrived on the scene and para medics confirme d that Hale had
not been seriously injured by the taser, Hale was place d under arr est for evading detention. He was then sear ched incident to arr est, and two small bag g ies of mar i h u ana and a small drug scale wer e discovere d on his person.

At the suppression hear ing, Hale arg ued that J ohnson’s detention of him was based solely on an anony

mous tip that was inadequa tely corr oborate d. For that rea son, acc ording to Hale,
J ohnson lacke d rea sonable suspicion to detain him. After taking the matter under advisement, the trial court disag ree d, and denie d the motion to suppress.

STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress is revie wed on appeal for abuse of discretion. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006). The trial court is g iven almost complete defer ence in its deter mination o f h istorical facts, espec ially if those are based on

an assessment of cre dibilit y and demea nor. State v. Garcia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim.

3App. 2008). The same defe renc e is aff orded the trial court with respe ct to its ruling s on application of the law to questions of fac t and to mix ed questions of law and fac t, if resolution of those questions depends on an evalua tion of cre dibilit y and demea n o r. Montanez v. State , 195 S.W .3d 101,
108-09 (Tex. C ri m . App. 2006). Howeve r, for mix ed questions of law and fac t that do not fall within that cat ego ry , a revie wing court conducts a de novo revie w. Amador v. State , 221 S.W .3d 666, 673 (Tex. Crim. App. 2007).

The trial judge is the exclusive fac t-finder at the suppression hear ing. State v. Ross , 32 S.W .3d 853, 855 (Tex. Crim. App. 2000). When the trial court does not make express finding s of fac t, an appellate court must view the evidenc e in the light most favor able to the trial court’s ruling , assuming that it made any implicit finding s of fac t that are supported by the rec ord. Id

. An appellate court will sustain the trial court’s decision if it conclude s that the decision is corr ect on any theory of law a pplicable to the c ase. Id . at 855-56.

ANALYSIS
A police office r may lawfully conduct a t emporary detention if there is rea sonable suspicion to believe that the detained person is violating the law. Neal v. State , 256 S.W .3d 264, 280 (Tex. Crim. App. 2008); Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exis ts if the office r has specific articula ble fac t s that, when combined with rational i nfer ence s from those fac ts, would lead him to rea sonably suspect that a particula r pers o n h as , o r

soon will be, eng ag ed in criminal activity

. Neal , 256 S.W .3d at 280; Garcia v. State , 43 S.W .3d 527,
530 (Tex. Crim. App. 2001). These fac ts must amount to more than a m er e h unch or suspicion.
Davis v. Stat e , 9 4 7 S

. W .2d 240, 244 (Tex. Crim. App. 1997). “The articula ble fac ts used by the

4office r must cre ate some rea sonable suspicion that some activity out of the ordinary is occur ring or has occur red, some sug g estion to connec t the detainee with the unusual activity , and some indication the unusual activity is rela ted to crime.” Id

. I n making this deter mination, we consider the totality of the c ircumstance s. Ford , 158 S.W .3d at 492; Garcia , 43 S.W .3d at 530.

Reasonable suspicion may be established based on information g iven to police office rs by citizen informants, provided the fac ts are adequately corr oborate d by the office r. Brother v. State , 166 S.W .3d 255, 258-59 (Tex. Crim. App. 2005). A tip by an unnamed informant of undisclosed re liability may justify the i nitiation of an investiga tion; st anding alone, howe ver, it

rar ely will establish the requisite level of rea sonable suspicion nece ssary to justify an investiga tive detention. Florida v. J.L. , 529 U.S

. 2 6 6 , 269 (2000) (citing Alabama v. W hite , 496 U.S. 325,
329 (1990))

. There must be some further indicia of reliability , some additional fac ts from which

a police office r may rea sonably conclude that the tip is reliable and a detention is justified. W hite , 496 U.S. at 329. An office r’s prior knowledg e, his experience , and his corr oboration of the details of th e t i p may be considere d in establishing rea sonable suspicion. Id

. at 329-30. “Corrobor ation does not mean that the office r must persona ll y observe the conduct that cause s him to rea sonably suspect that a c rime is being , has been, or is about to be c ommitt ed.” Brother , 166 S.W .3d at 259
n.5. “Rather , corr oboration ref ers to whether the police office r, in light of t h e circ umstances, confirms enoug h fac ts to rea sonably conclude that the information g iven to him is re l i ab l e and a temporar y detention is thus just ified.” Id

. I n contending that Offic er J ohnson lacke d rea sonable suspicion to detain him, Hale cites to three case s involving traff ic stops based on tips to the police that this Court conclude d

5wer e not sufficie ntly corr oborate d by the detaining officer. S ee State v. Grif

fey , 241 S.W .3d 700,
704 (Tex. App.—Austin 2007, pet. ref ’d); Stewart v. State , 22 S.W .3d 646, 648 (Tex. App.—Austin 2000, pet. ref

’d); Davis v. State , 989 S.W .2d 859, 865 (Tex. A pp.—Austin 1999, pe t. r ef’ d). The 1 problem with compar ing this case to those case s is the highly fac t-specif ic nature of the rea sonablesuspicion inquiry . As this Court has previously explained,

I n conducting our revie w, we must heed the Supreme Court’s admonitions that “the conce pt of rea sonable suspicion, like probable cause , is not ‘re adily , or even usefully , reduc ed to a neat set of leg al rules,’” an d that assig ning a prec ise definition to rea sonable suspi cion “is not possi b le.” Our inqui ry into rea sonable suspi cion i s “multi-fac eted,” and deter minati o n s m ade in other case s “‘w ill seldom be a useful ‘pre cede nt’ for another .’” I nstead, rea sonable suspicion is a “commonsense , nontechnica l conce ption[ ] that deal[s] with ‘the fac tual and prac tical considerations of eve ry day

life on which rea sonable and prudent men, not leg al technic ians, ac t.’” The fa cts are judge d under “ an objec tive standard: would the fac ts a vailable to the office r at the moment of the seizure or the sear ch ‘wa rra nt a man of rea sonable caution in the belief’ that the action taken was appropr iate? ” Thus, we should avoid a formulaic approa ch or a piece meal compar ison of simil ar fac tors in other case s, and

All three of the case s cited by Hale are distinguishable from the fac ts of this case . I n Davis 1 v. State , the police rec eived a repor t that the driver of a vehicle was driving “re cklessly ” and that the occupa nts wer e “possibly smoking marihuana.” 989 S.W .2d 859, 861 (Tex. App.—Aus t i n 1 9 99, pet. ref ’d). Howeve r, the detaining office r acknow ledg ed in his testimony t h at “h e observe d no traff ic offense being committ ed and saw no violation of l aw” prior to conducting his traff ic s t o p . Id . I n Stewart v. State , the police re ceive d a re port that a pe rson “f ell down a c ouple times” while try ing to g et into his vehicle at a g as station and “appe are d to be highly intox icated.” 22 S.W .3d 646, 648 (Tex. App.—Austin 2000, pet. ref ’d). Howeve r, the detaining office r testified that he conducte d a traffic stop on the s uspect’s vehicle without having observe d any traff ic vi olations. Id

. Finally , in State v. Griffey , the police rec eived a rep o rt t h at a p erson was passed out behind the whee l of a vehicle in a restaur ant’s drive-thr ou g h lane. 241 S.W .3d 700, 702 (Tex. App.—Austin 2007, pet. ref ’d). Howeve r, no criminal activity was alleg ed in the repor t and the detaining office r did not observe any

criminal ac tivity

. I n fac t, when he arr ived at the s cene , he observed the driver awake in he r vehicle, which contra dicted the tip. Id

. at 705. I n summary , in a ll thre e case s, the detaining office r observe d nothing that could rea sonably be char acte rized as suspicious behavior

. I n contra st, as we explain below, Officer J ohnson in t h is case observe d sever al s pecif ic articulable facts, that, when c onsidered in their

totality , led him to reasona bly suspect Ha le of c riminal activity

. 6instead consider the t o t al i ty of the circ umstances in this case and rely on

commonsense infe renc es . . . .

Tanner v. State , 228 S.W .3d 852, 856-57 (Tex. App.—Austin 2007, no pet.) (int er n al citations omitted).
I n this case , Offic er J ohnson received information from dispatch reg arding a “male/f emale disturbance” at a “small park” located on the cor ner of Third Street a

nd Mill Street. The caller s p ec i fi ca l l y reported that the male was on a bicy cle, and the couple was fig hting or
arg uing near a Saturn vehicle. Hale devotes much of his brief to arg uing that the tip was unreliable beca use it failed to provide a detailed descr iption of the wrong doing and beca use the tipster rema ined
anony mous. See Pipkin v. State , 114 S.W .3d 649, 655 (Tex. App.—For t Worth 2003, no pet.) (listing factors to be considere d in determining reliability of tip). Howeve r, t he caller did provide details, including the specific location of the disturbance , that it was betwee n a male and a fema le, that the male was on a bicy cle, and that the disturbance was occur ring near a Saturn vehicle. As for the anony mity of the tipster, even completely anony mous tips may provide rea sonable suspicion to justify a sear ch or seizure, so long as the tip is sufficie ntly corr oborate d. See, e.g. , W hite , 496 U.S.
at 331-32; Mann v. State , 525 S.W .2d 174, 175-76 (Tex. Crim. App. 1975); George v. State , 509 S.W .2d 34 7 , 3 4 7 -4 8 (T ex. Crim. App. 1974); Ramirez v. State , 658 S.W .2d 808, 810 (Tex. App.—Corpus Christi 1983), aff’d , 672 S.W .2d 480 (Tex. Crim. App. 1984). Her e, J ohnson

was able to corr oborate specific details of the tip when he arr ived at the scene —a male and a fema le
“we re in very close proxi mity like they wer e either prese ntly arg uing or had been arg uing,” they wer e fig hting or arg uing close to a Saturn vehicle, a nd the male was near a bicy cle. Moreove r, J ohnson

7testified that “the fema le was rathe r disheveled and looked like she was wiping tear s awa y .” Fr om these specific articula

bl e fa cts , J ohnson could have rea sonably inferr ed that the fema le was phy sically and/or emotionally distraug ht, that Hale was responsible for the fema le’s visible distress, and that Hale, beca

use he was “in very close proxi mity ” to the fema le, was either about to or threa tening to come into phy sical contact with her. I n fac t, beca use of the fema le’s “disheve led”
ap p ear ance , J ohnson could have rea sonably inferr ed that Hale might have alre ady done so . S u ch circ umstances, J ohnson could have rea sonably conclude d, sug g ested that a possible a ssault w as in
prog ress or had alre ady been committed. See Tex. Penal Code Ann. § 22.01(a) (West Supp. 2010) (def ining of fense of assa

ult). Such a deter

mination is particula

rly rea sonable in light of J ohnson’s 19 y ear s’ police experience

. Ba sed on that experience , he testified that “male/f emale disturbance s” usually indicated “domestic situations; like boy friend/g irlfriend, husband/wife.” Acc ording to J ohnson, “[R] outinely

. . . it’s a g uarde d situation; tensions are usually high. Oftentimes there has been violence or may be continued violence, so it’s an eleva ted priority call.” He added that such situations wer e “notoriously dang erous.” The trial court would not ha ve abused its discretion in finding that J ohnson’s leng thy

ex perie nce as a police office r made his suspicion that Hale may have committed an assault

rea sonable unde r the totality of the circ umstances. See United States v. Arvizu , 534 U.S. 266, 273 (2002) (re cog nizi ng , for purposes of rea sonable suspicion analy sis, that office rs may “dra w on their

own experience and specia liz ed training to make infere nces fro m and deductions about the cumulative informa tion available to them that mig ht well elude a n untrained pe rson”)

.

8Additionally , J ohnson p o i n t ed to other specific articula ble fac ts that g ave him

rea son to suspe ct that Hale had or soon would be eng ag ed in cr iminal activity

. First, J ohnson was confr onted with what appea red to be a volatile situation. J ohnson had alre ady witnessed fac ts
sug g esting a possible assault, in public, of a fema le by a male. J ohnson testified that as he was try ing
to stop and question the suspect, “the fema le beca me very verba l an d beg an walking over in my direc tion.” This c oncer

ned J ohnson “bec ause it’s not terribly uncommon to have the tables turned and have the ag g ression direc ted at the o ff i ce r; that has happene d many times in the past.”
Meanw hile, J ohnso n t es t i fi ed, another male beg an approa ching him “fr om down the street.”
Acc ording to J ohnson, this person’ s “emotions wer e clea rly eleva ted, he was y elling something, which I couldn’t understand. I didn’t know who he wa s y elling a t, but he was part of the situation and coming in our direc tion.” Thus, J ohnson had two emotionally char g ed i n d i v i d u al s coming toward him while Hale, who J ohnson could have rea sonably inferr ed was responsible for the others’ eleva ted emotions, was ref using to cooper ate. Thus, based on these additional fac ts, the trial court would not have a

bused its discretion in finding that J ohnson had reason to suspect that Ha le, if he had assaulted or threa

tened to assa

ult the female in a public place , had also committed the offe nse of disorderly cond u ct

. See Tex. Penal Code Ann. § 42.01(a) (4) (per son commits offe nse if he
“a b u s es or threa tens a person in a public place in an obviously offe nsive manner ”), (6) (per s o n commits offense if

he “f ights with anothe r in a public plac e”) (West Supp. 2010). Finally , J ohnson testified that when he approa ched Hale, Hale “picke d up his bike and beg an moving awa y from me despite my repe ated verba l commands for him t o s t ay put

so that I could s peak to him.” Flig ht from a police o ff i ce r, wh en co mbined with other suspi cious

9circ umstances such as the ones discussed above, is often a decisive fac tor in support of a finding of

rea sonable suspicion. See, e.g. , W ashington v. State , 660 S.W .2d 533, 535 (Tex. Crim. App. 1983) (“F light from a law enfor ceme nt office r ‘ca n provide in appropr iate circ umstances the key ingr edient justify ing the decision of a law enfor ceme nt office r to take action.’” ) (quoting United States

v. Vasquez , 5 3 4 F. 2 d 1142, 1145 (5th Cir. 1976)); Rey es v. State , 899 S.W .2d 319, 324 (Tex. App.—Houston [14t h Dist.] 1995, pet. ref ’d) (cha rac terizing flig ht as “the straw that broke the

came l’s back” in ju s tify ing office r’s decision to detain appellant) ; see also Illinois v. W ardlow , 528 U. S

. 119, 124 (2000) (re cog nizi ng “ner vous, evasive behavior ” as “a pertinent fac tor in deter mining rea sonable suspicion” and char acte rizing “hea dlong flig ht” as “the consummate act of evasion: it is not necessar ily indicative of w rong doing, but it is cer tainly sug g estive of suc h”). Hale contends that nothing Offic er J ohnson observe d was nece ssarily criminal behavior

. Howeve r, “[t] he possibili ty of an innocent explanation does not deprive the office r of the
capa city to enter

tain rea sonable suspicion of criminal conduct.” W oods v. State , 956 S.W .2d 33, 37 (T ex . C ri m . App. 1997). Moreove r, Hale addre sses eac h of the fac ts on which J ohnson relied in making his rea sonable-suspicion deter mination in isolation from the other fac ts and circ umstances of the case . Such a piece meal approa ch to the evidenc e is not permissible in a rea sonable-suspicion inquiry

. See Arvizu , 534 U.S. at 273-74 (cr iticiz ing lower court’s evalua tion of eac h fac tor that g ave rise to rea sonable suspi ci o n in isolation); Loesch v. State , 958 S.W .2d 830, 832 (Tex. Crim. App. 1997) (“B eca

use rea sonable suspicion is d e te rmined by the totality of the circ umstances, an appellate
court must look at all of the fac ts toge ther to m ak e the rea sonable suspicion deter mination; fac ts that do not show rea sonable suspicion in isolation may do so when combined with other fa ct s . ”) ;

10Sims v. State , 98 S.W .3d 292, 296 (Tex. App.—Houst o n [ 1 st Dist.] 2003, pet. ref ’d) (“[C] ourts should not eng ag e in a ‘divide an d co n q uer’ analy sis of the fac ts, but should instead look at the totality of the circ umstances to see if an office r had d ev el o p ed rea sonable suspicion.”); see also
Gu rrola v. State , 877 S.W .2d 300, 305 (Tex. Crim. App. 1994) (McCormick, P.J ., diss en t i n g) (dissenting beca

use majority opinion “mi s ap p lie[d] the ‘totality of the circ umstances’ test by individually examining in a vacuum eac h fac tor upon which [t he office r] relied to temporar ily detain appellant” ; dissent conclude d that totality of fa ct o rs such as heate d arg ument in parking lot and flig ht from office r, “whe n taken toge ther,” justified appellant’ s temporar y detention). Considering the totality of the above circ umstances, and const ruing J ohnson’s testimony and all rea sonable infere nces from that testimony in the light most favor able to the trial court’ s ru l i ng , we cannot conclude that the trial court a bused its discretion in finding that J ohnson had rea sonable suspicion to believe that Ha le may

have violate d the law.
Be cause J ohnson had rea sonable suspicion to detain Hale, he simil arly had probable

cause t o ar re s t Hale for the offe nse of evading detention. See Tex. Penal Code Ann. § 38.04 (West Supp. 2010) (providing that person commits offe nse of evading detention if he intentionally flee s from peac e office r attempting lawfully to detain him); Covarrubia v. State , 902 S.W .2d 549, 553-54 (Tex

. App.—Houston [1st Dist.] 1 9 95, pet. ref’d) (finding that office r had probable cause
to arr est suspect for evading detention when fac ts and circ umstances established that detention was lawful); see also Mince

y v. State , 112 S.W .3d 748, 751-52 (Tex

. App.—B eaumont 200 3 , no pet.) (finding that a

r r e st for evading detention was lawful when office rs had rea sonable suspicion to detain suspect); Mottley v. State , 8 4 1 S.W .2d 550, 551 (Tex. App.—Houston [1st Dist.] 1992, no pet.)

11(same)

. Acc ording ly , the evidenc e found incident to the arr est was admissible, and we thus cannot

conclude that the trial cour t abused its discretion in deny ing the motion to s uppress. We overrule Hale’ s sole issue.

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

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: De cembe r 15, 2010 Do Not Publish

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