Taflinger v. State 414 S.W.3d 881

OPINION

REBECA HUDDLE, Justice.

Appellant David Leroy Taflinger moved for en banc reconsideration of this panel’s opinion issued on May 9, 2013. We sua sponte withdraw our opinion and judgment of May 9, 2013, and issue this opinion and judgment in their place. Taflinger’s motion for en banc reconsideration is rendered moot by our withdrawing and reissuing our opinion and judgment. See Poland v. Ott, 278 S.W.3d 39, 41 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

Taflinger was charged with misdemean- or driving while intoxicated (DWI). Following the trial court’s denial of his motion to suppress, Taflinger pleaded nolo conten-dere and received a suspended sentence of 180 days in county jail, one year community supervision, and a $400 fine. On appeal, Taflinger argues that the trial court erred by denying his motion to suppress because: (1) the citizen-informant’s tip was too conclusory to give rise to reasonable suspicion; and (2) the arresting officer did not have probable cause to stop Taflinger because he did not commit a traffic violation. We affirm.

Background

At approximately 1:00 a.m. on November 8, 2011, Officer Kenneth D. Troost received a call on his cell phone as he was leaving the parking lot of a Chevron gas station in his patrol car. The call was from Reva Woffard, the gas station attendant on duty at the Chevron. Troost was familiar with this gas station and Woffard because he routinely fueled his patrol car

*884there. Woffard told Troost that a man had just come into the gas station, that he was intoxicated, and that he was getting into a red truck. Troost hung up and immediately pulled around to the back entrance of the gas station. There he saw that the only truck in the parking lot was a red truck, which was headed toward the exit of the gas station. Troost pulled in behind the truck and observed its driver, Taflinger, exit the Chevron parking lot, cross two lanes of northbound traffic, and turn left without signaling to head southbound on the roadway. Troost stopped Taflinger’s vehicle and, following a brief investigation, arrested Taflinger for DWI.

Taflinger was charged with misdemean- or DWI. He filed a motion to suppress alleging that Troost lacked reasonable suspicion to stop him. At a hearing on Taf-linger’s motion, Troost testified that he stopped Taflinger after he received a call from Woffard and observed Taflinger commit a traffic violation — failing to signal his left turn out of the gas station onto the public roadway. Taflinger argued that Woffard’s conclusion that he was intoxicated was unsupported by specific articulable facts necessary to create reasonable suspicion. He also argued that there was no traffic violation because the Traffic Code does not require a person to signal a turn from a private drive onto a public roadway.

The trial court found that Troost had reasonable suspicion to stop Taflinger based on Woffard’s report that Taflinger was intoxicated and the existence of exigent circumstances. The trial court also found that Troost had probable cause to stop Taflinger, based on his failure to signal his turn.

Discussion

In his two points of error, Taflinger argues that the trial court erred by denying his motion to suppress because: (1) Woffard’s tip was too conclusory to give rise to reasonable suspicion; and (2) the arresting officer did not have probable cause to stop Taflinger because he did not commit a traffic violation.

A. Standard of Review

We evaluate a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The trial judge is the sole trier of fact and judge of the weight and credibility of the evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). Accordingly, we give almost total deference to the trial court’s determination of historical facts if supported by the record. Ford, 158 S.W.3d at 493. But we review de novo the trial court’s application of the law to those facts. Id. “[Tjhe prevailing party is entitled to ‘the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.’ ” State v. Castleberry, 332 S.W.3d 460, 465 (Tex.Crim.App.2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008)). A trial court’s ruling will be sustained if it is “reasonably supported by the record and correct on any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002)).

B. Applicable Law

A police officer is permitted to stop and temporarily detain a person in order to conduct an investigation if the officer, based on his experience, has a reasonable suspicion that an individual is violating the law. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); Ford, 158 S.W.3d at 492 (citing Balentine v. State, 71 S.W.3d 763, 768 *885(Tex.Crim.App.2002)). An officer is justified in initiating a traffic stop “if the officer, based upon specific and articulable facts, reasonably surmises that the detained person may be associated with a crime.” Davis v. State, 829 S.W.2d 218, 219 (Tex.Crim.App.1992) (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1880). The officer “must be able to articulate something more than an ‘inchoate and unparticular-ized suspicion or hunch.’ ” Foster v. State, 326 S.W.3d 609, 613 (Tex.Crim.App.2010) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). Reasonable suspicion is determined by considering whether the officer had “some minimal level of objective justification for making the stop.” Id. Because reasonable suspicion is an objective standard, we disregard any subjective intent of the officer and we consider the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

The officer need not personally observe the factual basis giving rise to reasonable suspicion for a traffic stop; rather, under certain circumstances, a stop may be justified if the facts underlying the traffic stop are observed by a civilian-informant. See Brother v. State, 166 S.W.3d 255, 259 n. 5 (Tex.Crim.App.2005) (citing Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). “A citizen’s tip may justify the initiation of a stop if the tip contains ‘sufficient indicia of reliability’ ” and the officer corroborates those facts supplied by the citizen-informant. Nacu v. State, 373 S.W.3d 691, 694 (Tex.App.-San Antonio 2012, no pet.) (quoting Arizpe v. State, 308 S.W.3d 89, 92 (Tex.App.-San Antonio 2010, no pet.)).

A tip is entitled to greater weight when the informant gives a detailed description of the wrongdoing, along with a statement that the informant observed the event firsthand. Pipkin v. State, 114 S.W.3d 649, 655 (Tex.App.-Fort Worth 2003, no pet.). “Furthermore, a person who is not connected with the police or who is not a paid informant is considered inherently trustworthy when he advises the police that he suspects criminal activity has occurred or is occurring.” Id.; State v. Stolte, 991 S.W.2d 336, 341 (Tex.App.-Fort Worth 1999, no pet.). “[W]hen the informant provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.” Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011) (citing Brother, 166 S.W.3d at 257).

The most reliable form of a citizen tip is information given to the officer by a “face-to-face informant who has no other contact with the police beyond witnessing a criminal act.” State v. Griffey, 241 S.W.3d 700, 704-05 (Tex.App.-Austin 2007, pet. ref'd) (citing Cornejo v. State, 917 S.W.2d 480, 483 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd)). Because of the inherent reliability of such an informant, the information provided by that informant may be sufficient to establish reasonable suspicion without additional corroboration. See id. at 705.

“[C]orroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is thus justified.” Brother, 166 S.W.3d at 259 n. 5. There is an inverse relationship between the reliability of the informant and the amount of corroboration needed to justify the stop — the less reliable the tip, the more corroborating information is needed. Martinez, 348 S.W.3d at 923 (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990)).

*886C. Reasonable Suspicion

Taflinger concedes that Woffard’s past relationship with the officer qualifies her as a reasonably reliable source of information. But, he argues, the trial court placed too much emphasis on her trustworthiness and ignored the fact that Woffard’s tip was not based on specific, articulable facts necessary to justify the stop.

Under Texas law, there is an inverse relationship between the reliability of the informant and the amount of corroboration needed to justify the stop. See Martinez, 348 S.W.3d at 923; Griffey, 241 S.W.3d at 705. Two cases illustrate this point. In Stolte, an officer was informed by his dispatcher that a caller had reported a possible DWI and that the caller was following the suspect. Stolte, 991 S.W.2d at 342. The officer was given a description and license plate number of the vehicle and told that the vehicle was traveling westbound and about to exit at Bedford Road. Id. The officer confirmed that a vehicle matching the dispatcher’s description and license plate number was traveling westbound and was exiting at Bedford Road and then the officer stopped the vehicle. Id. The Fort Worth Court of Appeals concluded that, in light of the totality of the circumstances, including the immediate threat to public safety, the officer was justified in initiating an investigatory stop after he confirmed that the vehicle, matching the description and license plate number given, was located where the caller indicated. Id. at 343. Therefore, the court held that the information from the unknown caller “was sufficiently reliable to justify the investigative stop and had been adequately corroborated by [the arresting officer] at the time of the detention.” Id.

Similarly, in Nacu, an officer was approached by a manager of a nearby restaurant who told him that a woman had been in the restaurant, she was intoxicated, and she got into a car in the parking lot. Nacu, 373 S.W.3d at 692-93. The officer asked the manager to identify the woman and the manager pointed to Nacu’s vehicle, which was still in the parking lot. Id. at 693. The officer stopped Nacu’s vehicle. Id. The San Antonio Court of Appeals concluded that there was reasonable suspicion for the stop because the information from the manager was reliable and the officer sufficiently corroborated it. Id. at 694-95. The court recognized that the manager’s statement that Naeu was intoxicated, when viewed without context, was conclusory. Id. at 696. However, the court concluded that the explanation provided by the manager — “that the driver of a vehicle had previously been in her restaurant, was intoxicated, and trying to drive through metal poles too narrow tó accommodate a car” — provided the trial court with specific, articulable facts to make an independent determination of whether the detention was objectively reasonable. Id.

Here, Troost testified that he was at a Chevron gas station in Kingwood around 1:00 a.m., when he received a call on his cell phone from Woffard, who worked at that Chevron and with whom Troost had spoken hundreds of times. Troost testified that he believed Woffard was reliable and credible and that Woffard informed him that an intoxicated man had just left her store and was getting into a red truck. Troost immediately returned and confirmed that the only truck in the parking lot was a red truck that was pulling up to the exit of the gas station. Troost testified that a matter of seconds passed between the time of Woffard’s phone call and the time he identified the red truck. He pulled in behind Taflinger’s truck and, rather than stop him solely on reasonable suspicion, he waited to see if Taflinger committed a traffic violation. After ob*887serving Taflinger commit what he believed to be a traffic violation, Troost stopped Taflinger and ultimately arrested him.

We conclude, based on the totality of the circumstances, that Woffard’s tip and Troost’s corroboration, considered together, were sufficient to give Troost reasonable suspicion to stop Taflinger. First, Troost was familiar with Woffard, knew Woffard’s first and last name, had spoken with her hundreds of times, and believed her to be reliable and credible. He was also familiar with the gas station where she worked and was at that gas station when he received the call from Woffard. Woffard relayed events that she had witnessed firsthand and gave Troost a description of Taflinger’s vehicle. These factors all made Woffard’s tip reliable. See Stolte, 991 S.W.2d at 342 (finding information received from informant reliable because officer could learn identity of informant who stopped at scene, informant placed himself in position to be held accountable for his intervention by stopping at scene, informant relayed events that he personally witnessed, and informant remained on phone with dispatcher to update and track suspect’s location); see also Turley v. State, 242 S.W.3d 178, 181-82 (Tex.App.-Fort Worth 2007, no pet.) (concluding that tip from gas station clerk was reliable because officer stopped at gas station frequently, knew clerk’s name, clerk was calling from workplace, clerk relayed events she witnessed firsthand, clerk gave officer description and license plate number of vehicle, and there was no information that clerk was paid informant).

Next, because Woffard’s tip was reliable, less corroboration was necessary to create reasonable suspicion. See Martinez, 348 S.W.3d at 923; Griffey, 241 S.W.3d at 705. Here, Troost was at the gas station at the time he received the call, and thus was able to corroborate Woffard’s tip within seconds. He observed that the vehicle described by Woffard was in the parking lot and saw that no other vehicle matching that description was there. Troost also observed the vehicle exit the parking lot without signaling. And, while this behavior alone is not indicative of intoxication, it provided a “small additional measure of corroboration” to Woffard’s tip that Taflinger was intoxicated. See Reesing v. State, 140 S.W.3d 732, 735-37 (Tex.App.-Austin 2004, pet. ref'd) (concluding that appellant’s observed behavior in parking lot — pausing in parking lot for what officer considered to be long time absent any traffic and failing to signal turn— “while alone not indicative of intoxication, gave a small additional measure of corroboration to the caller’s report” that appellant was intoxicated). Additionally, the suspected offense, DWI, involved an immediate threat and danger to public safety. As the court noted in Stolte, “it would be wholly unreasonable ... to require a police officer to ‘corroborate’ an informant’s tip by waiting for the suspect to swerve out of his lane or otherwise jeopardize the safety of other drivers.” Stolte, 991 S.W.2d at 343 n. 4 (emphasis in original). Having considered the totality of the circumstances, including the reliability of Woffard’s tip, Troost’s corroboration, and the immediate threat and danger that an intoxicated driver poses to public safety, we hold that Troost was objectively justified in initiating an investigatory stop. See id. at 343 (holding officer justified in conducting investigatory stop, in light of immediate threat to public safety created by intoxicated driver, after he located vehicle as described by informant); see also Nacu, 373 S.W.3d at 695 (reasonable suspicion where officer testified that manager appeared trustworthy and that he verified tip from manager by confirming there was *888restaurant in vicinity and locating vehicle described by manager).

Finally, Taflinger contends that even if Woffard’s tip was reliable and was corroborated by Troost, her tip did not justify the stop because her statement that Taf-linger was “intoxicated” is purely concluso-ry. In support of this assertion, Taflinger relies primarily on Ford v. State, in which the Court of Criminal Appeals held that the arresting officer’s conclusory statement that the defendant was “following too close” did not establish reasonable suspicion for an investigatory stop. Ford, 158 S.W.3d at 493-94. The Court explained that the record revealed “an absence of any facts allowing an appellate court to determine the circumstances upon which [the arresting officer] could reasonably conclude that Ford actually was, had been, or soon would have been engaged in criminal activity.” Id. at 493. Without specific, articulable facts, the Court had no means to assess whether the arresting officer’s opinion that Ford was following too closely was objectively reasonable. Id.

We note first that Ford did not involve a tip from an informant and, therefore, the Court of Criminal Appeals did not conduct the analysis we have applied here. Second, in Ford, the officer’s opinion that the appellant was “following too closely,” which was held to be an “ineffective substitute[] for specific, articulable facts,” was the only testimony offered to establish reasonable suspicion. Ford, 158 S.W.3d at 493. Here, in contrast, Woffard’s statement that Taflinger was intoxicated, while arguably conclusory, was supported by other evidence that would allow a reviewing court to determine whether Troost’s detention of Taflinger was objectively reasonable — Troost’s testimony that, upon receiving this information, he immediately pulled into the gas station parking lot, identified the red truck, and observed Taf-linger exiting the parking lot and crossing two lanes of traffic without signaling. See Nacu, 373 S.W.3d at 696 (concluding that informant’s statement that appellant was “too intoxicated to drive,” while standing alone appeared conclusory, when viewed in context with informant’s other statements that appellant had just been in her restaurant and was trying to drive through metal poles too narrow to accommodate a car, gave officer specific, articulable facts that would allow reviewing court to determine whether appellant’s detention was objectively reasonable).

We overrule Taflinger’s first point of error. Because we have found that there was reasonable suspicion for the stop, we need not consider Taflinger’s second point of error.

Conclusion

We affirm the trial court’s judgment. We dismiss all pending motions as moot.

Justice SHARP, dissenting.

JIM SHARP, Justice,

dissenting.

As there was no independent corroboration of the gas station cashier’s unsubstantiated claim that Taflinger was “drunk” and the officer’s stop was based upon an imagined traffic violation, I dissent.

Because the only question for our review is the application of the law to the undisputed facts, this court’s review of the trial court’s conclusions of law is de novo. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005).

The majority seeks to re-cast this groundless stop by reference to cases which are all critically distinguishable from the very simple and basic facts as they have arrived in our Court:

1. A gas station cashier who Officer Troost knew because he frequented the station, called Officer Troost’s *889cell phone and reported that Taflinger had just left the store drunk, was driving off the station’s premises in a red truck, and that Officer Troost should stop Taflinger and arrest him.

2. Officer Troost saw the red truck turn out onto a public roadway across two northbound lanes and turn left without signaling.

3. Under the mistaken belief that Taf-linger had committed a traffic violation by not signaling, Officer Troost stopped Taflinger and subsequently arrested him for DWI.

Officer Troost observed no actual traffic violations; no weaving; no driving exceptionally slow; nor incidents of other cars being nearly run off the road due to Taf-linger’s driving.

As in Ford, the record provides no facts that would allow a reviewing court to determine whether the officer’s opinions were objectively reasonable. 158 S.W.3d at 493. The cashier merely proffered her opinion that Taflinger was “drunk,” and that Officer Troost should stop Taflinger and arrest him. An opinion with no articulated factual basis cannot provide the basis for an objectively reasonable suspicion sufficient to detain a driver. Id. (stating “ar-ticulable facts are required to provide a basis for finding reasonable suspicion”).

The facts of this case are not the facts of State v. Stolte, 991 S.W.2d 336 (Tex.App.-Fort Worth 1999, no pet.) in which the caller, a former law enforcement employee, described Stolte’s dangerous driving to the police dispatcher in real time and in great detail (e.g., the number of times Stolte’s vehicle weaved from its lane, the fact that Stolte almost ran another car off the road), thus providing a factual basis for the subsequent stop, not a mere unsupported eon-clusory statement. Id. at 340.

Nor do the facts here comport with Nacu v. State, 373 S.W.3d 691 (Tex.App.-San Antonio 2012, no pet.)—the case cited by the majority in which the citizen who alerted the officer about an intoxicated driver was a restaurant manager who had observed Nacu disturbing other customers, using profanity, throwing napkins and sugar packets, and asking other customers to buy her alcohol after the restaurant staff refused to serve her. Id. at 692-93. When Nacu left and attempted to drive away, the manager ran outside with a cell phone in order record Nacu’s license plate information and give it to police. Id. at 693. Seeing a police unit in the adjacent lot, the manager reported Nacu to the officer, who immediately thereaftef personally witnessed Nacu drive in an unsafe manner between two poles in her attempt to exit the restaurant’s lot. Id. No such erratic or unsafe driving was in play in the present case. Indeed, here, there is no “there” there — there is nothing apart from an unsubstantiated conclusory accusation and a legally executed exit and turn from a private driveway onto a public roadway.

The majority characterizes Taflinger’s non-signaled exit from the parking lot as a “small additional measure of corroboration” of Taflinger’s intoxication. What corroboration? Since Officer Troost’s testimony never noted anything except an imagined traffic violation, we can assume that what the officer witnessed was nothing more than a perfectly executed exit and turn onto a public roadway. How does that in any way serve to corroborate anything?

The reasonableness of a given detention will turn on the totality of the circumstances in that particular case. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). The totality of the circumstances of this case is so lacking in a basis for objectionably reasonable suspicion, it cannot stand.

*890The majority’s recurring recitation as to the credibility and weight to be accorded citizens’ tips, while valid in a general sense, is nothing more than an obfuscation (“look over there”), because Taflinger never contests the cashier’s reliability or credibility. Rather, the actual issue here is the absence of articulable facts that could serve as the basis for an objectionably reasonable suspicion.

When the cashier called Officer Troost’s cell phone, she alerted him that Taflinger was “drunk” and leaving the premises driving a red truck. Officer Troost, who was on the gas station’s premises, spotted the red truck (the only truck on the premises) pulling out from the station and turning onto a public roadway. Officer Troost stopped Taflinger’s vehicle for failing to sign a turn that the law imposes no duty to signal. Apart from having received a call advising him of the cashier’s conclusion that Taflinger was “drunk,” and observing something the officer incorrectly construed to be a law violation sufficient to stop the truck, Officer Troost did not follow the truck to observe it for actual violations or other “specific and articulable facts” from which he may have reasonably surmised that Tafligner was “associated with a crime.”

Because neither Officer Troost nor the cashier articulated a factual basis which would allow a reviewing court to determine whether Officer Troost had an objectively reasonable suspicion sufficient to detain Taflinger, I would reverse. See Ford, 158 S.W.3d at 493-94 (holding trial court erred in denying defendant’s motion to suppress due to lack of articulable facts providing basis for finding reasonable suspicion).

Justice SHARP, dissenting.