Raymond Manning v. State of Texas

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00013-CR

______________________________



RAYMOND MANNING, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee


                                              


On Appeal from the 155th Judicial District Court

Austin County, Texas

Trial Court No. 99R-102


                                                 




Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross



O P I N I O N


          Raymond Manning appeals his conviction of manslaughter. He was driving a truck and ran into another vehicle. A jury found him guilty and assessed punishment at ten years' imprisonment. In our original opinion in this case, we reversed his conviction and remanded for a new trial because we concluded the trial court had erred by admitting extensive testimony about a blood test that showed Manning was found with a metabolite of cocaine in his blood. The Texas Court of Criminal Appeals held that our conclusion was incorrect and that the evidence was admissible, and reversed to this Court with directions to consider Manning's remaining points of error.

          Manning first contended the evidence was legally insufficient to support his conviction. We concluded in our original opinion, even without the metabolite testimony, the evidence was legally sufficient. He also contended the trial court erred by overruling his request for an instruction to limit the jury's consideration of the evidence of the metabolite in his blood. In our original opinion, we found the court's denial of that request was not error. We will not now revisit our decision on those issues.

          Manning also contends the trial court erred by admitting reputation testimony during the punishment hearing. Manning contends the court erred in allowing Lisa Schraeder, a community supervision officer, to testify as a reputation witness because: 1) she did not have substantial knowledge; 2) her knowledge of his reputation was not obtained before the date of the offense; 3) her testimony was based solely on knowledge of specific acts; and 4) the fact she did not discuss his reputation with anyone made her incompetent to testify as a reputation witness. In our original opinion, we found the admission of the testimony was error because the State failed to show the witness had the necessary familiarity with Manning's reputation to justify admission of her testimony, but we did not determine whether it was harmful error, because we had reversed on other grounds.

          Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2004) permits the state and the defendant to offer evidence as to any matter the trial court deems relevant to sentencing, including the defendant's general reputation, his or her character, and opinions regarding her or his character. The trial court's decision to admit or exclude evidence at the punishment phase is subject to review for an abuse of discretion. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

          As we stated in our original opinion, the requirement that the witness at the penalty phase be substantially familiar with the defendant's reputation was removed by amendment to Tex. R. Crim. Evid. 405(a) in 1990 and was not revived in Tex. R. Evid. 405(a).

          Still, because the basis for the reputation hearsay exception is the reliability of the synthesis of observations of the day-to-day activities of the accused, Wagner v. State, 687 S.W.2d 303, 313 (Tex. Crim. App. [Panel Op.] 1984) (op. on reh'g), a reputation witness must be familiar with the defendant's reputation in some community. While it is not necessary to ask specifically about the defendant's "reputation," Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 1993), the witness' testimony must be based on discussions with others concerning the defendant, or on hearing others discuss the defendant's reputation, not just on personal knowledge. Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991).

          It has been held that discussions with other police officers are sufficient to qualify a witness to testify regarding reputation. See id.; Martin v. State, 449 S.W.2d 257, 260 (Tex. Crim. App. 1970). However, the testimony may not be based solely on the charged offense, the defendant's "rap sheet," or knowledge of specific acts. See Mitchell v. State, 524 S.W.2d 510, 512 (Tex. Crim. App. 1975); Davis v. State, 831 S.W.2d 839, 844 (Tex. App.‒Dallas 1992, pet. ref'd); see also Wagner, 687 S.W.2d at 313-14 (error to allow reputation testimony based on allegation of one specific act); Frison v. State, 473 S.W.2d 479, 485 (Tex. Crim. App. 1971) (discussion of offense not improper as basis as long as based on other discussions as well).

          Before the State began its case-in-chief at the penalty phase, defense counsel objected outside the presence of the jury to the State's intention to call Schraeder as a reputation witness. On voir dire, Schraeder testified she was familiar with Manning's reputation in the community. On cross-examination, responding to Manning's question requesting to know the basis of her reputation testimony, Schraeder testified only as to her personal knowledge that Manning had appeared in court for his conditional bond hearing smelling of alcohol and with a blood alcohol concentration of .07, and that she had received reports from supervising personnel that, while he was on conditional bond, Manning tested positive twice for cocaine use. At the conclusion of questioning on voir dire, Manning objected to Schraeder as an opinion or reputation witness because there was insufficient predicate laid. This objection was overruled. Schraeder testified before the jury that Manning appeared at a bond hearing smelling of alcohol and, after the court overruled Manning's renewed objection, that Manning's reputation for being peaceful and law-abiding was bad.

          Manning contends the court abused its discretion in allowing Schraeder's reputation testimony because the State failed to establish a proper predicate. Although Schraeder testified she was familiar with Manning's poor reputation for being a peaceful and law-abiding citizen, the cross-examination by Manning revealed this knowledge of reputation was based only on Schraeder's one personal observation and two reports of specific acts. Although the State argues Schraeder testified to discussions with the supervising personnel that faxed the test results, the record indicates she received only facsimiles reporting the results of the urine analysis tests.

          The test results are evidence of specific acts, and while it is not error to consider specific acts in determining the reputation of the accused, alone they cannot combine with personal knowledge to establish Schraeder's competence to testify as to Manning's reputation. There is no evidence Schraeder discussed Manning with anyone, official or civilian, within any community. Such a foundation is insufficient to establish the proper predicate. Manning's question was broad enough that Schraeder should have provided all the bases for her familiarity with Manning's reputation. The State failed to ask any questions on redirect examination that might have established the proper predicate if Schraeder had failed to provide a complete answer. The court, therefore, abused its discretion in allowing Schraeder to testify that Manning's reputation for being peaceable and law-abiding was bad.

          We now turn to a harm analysis. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

          In order to properly conduct a harm analysis under Tex. R. App. P. 44.2(b), we conduct a harm analysis as a type of "other errors," and we must disregard the error unless it "affect[ed] [appellant's] substantial rights." Tex. R. App. P. 44.2(b). For claims of nonconstitutional error, the Texas Court of Criminal Appeals has held that "a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had 'substantial influence' on the outcome of the proceeding." Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). In other words, if we have "a grave doubt" the result was free from the substantial influence of the error, then we must reverse. Id. The court has explained that "grave doubt" means, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. at 637-38, citing O'Neal v. McAninch, 513 U.S. 432, 435-36 (1995). Thus, "in cases of grave doubt as to harmlessness the petitioner must win." Burnett, 88 S.W.3d at 637.

          In considering harm, we must review the entire record to determine whether the error had more than a slight influence on the verdict. See King, 953 S.W.2d at 271, citing Kotteakos v. United States, 328 U.S. 750, 776 (1946); Reeves v. State, 969 S.W.2d 471, 491 (Tex. App.‒Waco 1998, pet. ref'd). If we find the error had more than a slight influence on the verdict, we must conclude the error affected the defendant's substantial rights in such a way as to require a new trial. Reeves, 969 S.W.2d at 491. As explained above, if we have grave doubts about the error's effect on the outcome, we must remand. Id. Otherwise, we should disregard the error. Lopez v. State, 990 S.W.2d 770, 778 (Tex. App.‒Austin 1999, no pet.); Reeves, 969 S.W.2d at 491.

          In the context of alleged error at the punishment phase, under Rule 44.2(b), we therefore review the entire record to determine whether the error had more than a slight influence on the penalty assessed. If we find that it did, we must conclude the error affected the defendant's substantial rights in such a way as to require a new punishment hearing. Otherwise, we disregard the error. Guerrero v. State, No. 10-00-217-CR, 2003 WL 21815380, at *4 (Tex. App.‒Waco July 23, 2003, no pet. h.); Flores v. State, 48 S.W.3d 397, 404-05 (Tex. App.‒Waco 2001, pet. ref'd). We conclude from such review the error did not have more than a slight influence on the penalty the jury assessed in this case.

          First, Schraeder did not testify in front of the jury as to all the specific acts she described on voir dire. Specifically, she told the jury Manning "had appeared in court with a smell of alcohol on his breath." She did not testify to the jury about the .07 blood alcohol concentration or about receiving reports he had tested positive for cocaine use. If Schraeder's testimony in front of the jury as a reputation witness had included all the specific acts she related on voir dire, the harm would have been more apparent. However, had the State qualified Schraeder to give her opinion as to Manning's character, not just his reputation, all these specific acts would have been admissible anyway as prior "bad acts" under Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).

          Second, after Schraeder testified for the State, Manning's counsel essentially turned her into a witness for the defense. On cross-examination, defense counsel questioned her–and she testified at length–about the terms and conditions of community supervision and about the procedures involved in a revocation of community supervision. Although the jury did not recommend community supervision in its verdict, this was testimony in support of Manning's application for community supervision that he was able to get before the jury through the State's own witness.

          Third, Schraeder was not the only witness the State called at the punishment hearing. The jury also heard from Janice Peterson, daughter of Katherine Bonner, the deceased victim, that her mother was a good person and is missed. The jury was also able to consider the evidence introduced at the guilt/innocence stage of trial.

          Fourth, the State's focus in its closing argument was not on Schraeder's testimony, but on the evidence presented during the guilt/innocence phase showing that Manning had a cocaine metabolite in his blood during the accident and on the fact that Manning presented no witnesses on his behalf at the penalty phase. The State barely mentioned Schraeder's reputation testimony, and only talked about Manning's appearance at court with alcohol on his breath in response to defense counsel's argument about that matter.

           Finally, although this case involved the tragic death of an innocent person, and the State asked for the maximum punishment of twenty years' imprisonment, the jury assessed only ten years' imprisonment. We recognize that Manning was eligible for community supervision and that the jury rejected his request for that leniency. We cannot say, however, that the erroneous admission of Schraeder's reputation testimony made the difference in Manning not receiving community supervision.

          In light of the entirety of this record and the testimony admitted before the jury, we do not have the requisite "grave doubt" that the error made by the court in admitting unsupported testimony that Manning had a bad reputation influenced the jury more than slightly. The contention of error is overruled.

          We affirm the judgment.



                                                                Donald R. Ross

                                                                Justice 



Date Submitted:      October 28, 2003

Date Decided:         November 19, 2003


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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00188-CR

                                                ______________________________

 

 

                                     THE STATE OF TEXAS, Appellant

 

                                                                V.

 

                                       JAMIE LEA WILSON, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the 354th Judicial District Court

                                                              Hunt County, Texas

                                                            Trial Court No. 26057

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                          Opinion by Justice Carter

                                                                   O P I N I O N

 

            The State appeals[1] the trial court’s ruling granting a motion to suppress filed by Jamie Lea Wilson after her arrest for possession of methamphetamine in an amount of four or more but less than 200 grams.  We affirm the trial court’s ruling. 

I.          FACTUAL AND PROCEDURAL HISTORY

            Officer Stephen Brownlow was contacted “regarding a tip involving drug activity.”  Over the telephone, an informant revealed that “there would be a gold, Chevy Blazer expected eastbound on Highway 66 within 15 minutes of [when] we receive[d the] information, and there would be two females in the vehicle and that they would be carrying about four ounces of methamphetamine.”

            Brownlow located a gold Chevy Blazer and “followed it through town” for approximately five minutes.  No traffic or other violation was committed.  The vehicle pulled into the driveway of a private residence behind a local church and parked in front of another vehicle.  Brownlow turned on the patrol car lights as the Blazer came to a stop.  Jennifer Rossignol was driving the Blazer while carrying passenger Wilson.  Brownlow testified that “when I stopped the vehicle, the driver got out” and “tried to walk over to the house.  I told her to stop and come back to the vehicle.”  Rossignol’s driver’s license was expired. 

            Brownlow testified Wilson “was reaching down -- she turned away from the patrol -- from us and our view, the front of her body was facing away, and she was digging down in her pants like this like she was either stuffing, reaching, or scratching something.  So immediately suspicious.”  Fearing Wilson might have a weapon, Brownlow instructed her to “get her hands out of her pants.”  When she turned around, Brownlow observed “a cylindrical shaped object on the side of her leg.”  Prior to the commencement of a pat-down search, Wilson voluntarily retrieved methamphetamine from her pants.  She was arrested for possession of methamphetamine.

II.        STANDARD OF REVIEW

            We review the trial court’s decision to grant Wilson’s motion to suppress evidence by applying a bifurcated standard of review.  Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d). 

            Because the trial court is the exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost total deference to its determination of facts supported by the record.  State v. Ross, 32 S.W.3d 853, 856–57 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We also afford such deference to a trial court’s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). 

            While we defer to the trial court on its determination of historical facts and credibility, we review de novo its application of the law and determination on questions not turning on credibility.  Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at 89; Graves, 307 S.W.3d at 489.  Since all evidence is viewed in the light most favorable to the trial court’s ruling, we are obligated to uphold the granting of Wilson’s motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case.  Carmouche, 10 S.W.3d at 328; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

III.       ANALYSIS

            A.        Burden of Proof

            When a defendant seeks to suppress evidence on the basis of an illegal search or seizure, the burden of proof is placed initially upon the defendant.  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  A defendant meets the initial burden of proof by establishing that a search or seizure occurred without a warrant, shifting the burden of proof to the State.  Id.  If the State is unable to produce evidence of a warrant, it must prove the reasonableness of the search or seizure.  Id.  Here, the suppression hearing began with the State stipulating this case involved a warrantless arrest.  This stipulation shifted the burden of proof to the State.  See id.

            B.        Brownlow’s Seizure of Wilson Was an Investigative Detention

            The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens:  arrests, investigative detentions, and encounters.  State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).  Citing State v. Priddy, the State argues that Brownlow’s interaction with Wilson was an encounter which did not require probable cause or reasonable suspicion.  321 S.W.3d 82, 87 (Tex. App.—Fort Worth 2010, pet. ref’d).  In Priddy, our sister court correctly stated that during encounters, “[l]aw enforcement officers are permitted to approach individuals without probable cause or reasonable suspicion” because although “[s]uch interactions may involve inconvenience or embarrassment . . . they do not involve official coercion.”  Id. (citing Florida v. Royer, 460 U.S. 491, 497–98 (1983); State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008); State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999)).

            The lack of requirement for probable cause or reasonable suspicion is premised on the theory that “[u]nlike an investigative detention or an arrest--each a seizure for Fourth Amendment purposes--an encounter is a consensual interaction, which the citizen may terminate at any time.”  Id. at 86 (citing Gurrola v. State, 877 S.W.2d 300, 302–03 (Tex. Crim. App. 1994)).  “So long as the citizen remains free to disregard the officer’s questions and go about his or her business, the encounter is consensual and merits no further constitutional analysis.”  Id. (citing California v. Hodari D., 499 U.S. 621, 628 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)).  The test also has been stated that “in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.”  Florida v. Bostick, 501 U.S. 429, 439 (1991).

            The facts of this case do not indicate a consensual encounter.  Brownlow had been driving behind the Blazer for approximately five minutes before he followed it into the driveway of a private residence.  He turned on his patrol car lights as the vehicle came to a stop.  When the driver of the vehicle exited the Blazer and began walking toward the house, Brownlow “told her to stop and come back to the vehicle.”  This command, by the uniformed officer given after initiation of patrol car lights, would communicate to reasonable persons that they were not free to decline the officer’s requests or otherwise terminate the encounter.  Therefore, Brownlow’s seizure of Wilson implicated Fourth Amendment protections. 

            C.        Reasonable Suspicion Was Required

            The Fourth Amendment prohibits “unreasonable searches and seizures.”  U.S. Const. amend. IV.  This prohibition extends to “brief investigatory stops such as the stop of [a] vehicle.” United States v. Cortez, 449 U.S. 411, 417 (1981); see Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). 

            Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest.  Terry v. Ohio, 392 U.S. 1, 22 (1968).  To initiate an investigative stop, the officer must possess a reasonable suspicion based on specific, articulable facts that in light of the officer’s experience and general knowledge, would lead the officer to the reasonable conclusion that criminal activity is underway and the detained person is connected to the activity.  Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).  Such a stop must be objectively reasonable in light of the particular circumstances of the case.  Maryland v. Wilson, 519 U.S. 408, 411 (1997); Terry, 392 U.S. at 21–22; Corbin, 85 S.W.3d at 276.  Reasonableness depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement.”  Corbin, 85 S.W.3d at 276 (quoting Wilson, 519 U.S. at 411). 

D.        The Investigative Detention Without Reasonable Suspicion Was Unreasonable

 

                        1.         The Anonymous Tip

            An investigative stop need not be based on personal observation, but may be based on an informant’s tip that bears sufficient “indicia of reliability” to justify a stop.  See Adams v. Williams, 407 U.S. 143, 147 (1972).  The State argues Brownlow’s detention was reasonable given the informant’s tip. 

            An anonymous telephone call rarely will, standing alone, establish the requisite level of reasonable suspicion because “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”  Gilmore v. State, 323 S.W.3d 250, 258 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Alabama v. White, 496 U.S. 325, 329 (1990); Florida v. J.L., 529 U.S. 266, 270 (2000)). 

            After a hearing, the trial court granted the motion to suppress the evidence found as a result of the search.  The trial court was in the best position to observe and determine the reasonableness and credibility of the testimony.  When the trial court makes no specific findings of historical fact, we presume it made those findings necessary to support its ruling, provided they find support in the record.  Carmouche, 10 S.W.3d at 327–28.  The evidence appears to support the trial court’s implicit conclusion that the informant’s information was, in the inception, classified as an anonymous tip.

            Brownlow originally stated in his report that the informant was anonymous, but at the suppression hearing, he testified that the informant was a confidential informant whom Brownlow knew at the time he was contacted.  Later, Brownlow qualified that account and stated that the informant was identified “[w]hen the report was done.”  When later questioned by the trial judge, Brownlow stated that he did not know the informant, and the reliability of the informant could only be established by corroboration of information.[2]  No attempt was made to present evidence that the informant had given other reliable information in the past. 

                        2.         Corroboration of the Tip

            To provide reasonable suspicion for an investigative detention, an anonymous tip must be “suitably corroborated or otherwise exhibiting sufficient indicia of reliability.”  Gilmore, 323 S.W.3d at 258 (citing J.L., 529 U.S. at 270).  Police can provide other indicia of reliability by independent corroboration of the informant’s information.  Id. (citing Illinois v. Gates, 462 U.S. 213, 236 (1983); Cassias v. State, 719 S.W.2d 585, 590 (Tex. Crim. App. 1986) (op. on reh’g)). 

            Brownlow claimed he found Donahue’s tip reliable because “he was her boyfriend so I guess he had intimate knowledge of [Wilson’s] activities.  He knew exactly what road she was on, knew what time frame, . . . . He knew there’d be two females in the vehicle.  It was a gold Chevy Blazer, which are pretty rare.”  In general, corroboration of mere innocent details is insufficient to corroborate an anonymous tip.  Id.  Brownlow’s independent corroboration must establish that the anonymous tip is “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”  Id. (quoting J.L., 529 U.S. at 271).  “[T]he corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip.”  Id. at 258–59.  The trial court could conclude that the testimony recited above only established corroboration of innocent details.

            This case is remarkably similar to the facts of Smith v. State, 58 S.W.3d 784 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  In Smith, police received a tip from Smith’s girlfriend[3] that Smith would have heroin in his vehicle northbound on Highway 6 between 6:00 and 8:00 p.m.  She described the vehicle, license number, and explained Smith would have two passengers.  Shortly after 6:00, Smith was in the vehicle and place as described with two passengers; he was stopped and heroin was found.  Even though the informant had given information in the past, it could not be verified that it was reliable.  The court thought it was relevant that the informant had not explained the reason for turning in this information on her boyfriend or whether she could have an ulterior motive.  Id. at 791.

            As in this case, the State argued that the tip had been corroborated, but the Fourteenth Court held that the corroboration was of easily obtainable details and did not furnish a basis for reasonable suspicion.  Id. at 792 (citing Garcia v. State, 3 S.W.3d 227, 235 (Tex. App.––Houston [14th Dist.] 1999, no pet.) (accurate description of subject’s location and appearance is reliable in identifying person accused, but does not show tipster has knowledge of concealed criminal activity)).  We recited in Gilmore that an innocent detail may corroborate an anonymous tip when the tip correctly predicts future movements of the suspect if the travel involves unusual itineraries.  Gilmore, 323 S.W.3d 259.  When the travel itinerary is more commonplace, knowledge of a suspect’s travel plans may not be sufficient.  Id. (citing Smith, 58 S.W.3d at 793) (finding no reasonable suspicion for various reasons, including that travel was down “well traveled corridor”).  There is no testimony that the highway route taken by Rossignol and Wilson was unusual.

            However, the State argues that the following transcript established corroboration of travel plans:

            Q.        In the -- in the time that you were going to go try to investigate Ms. Wilson traveling with narcotics, there was further conversation between Mr. Donahue and Ms. Wilson in regard to trying to get her to go and stop and get a hamburger and try to slow her down a little bit; is that right? 

 

            A.        Correct. 

 

            Q.        And she actually did that; is that right?

 

            A.        Correct. 

 

            Q.        And she had food there, including a hamburger, when you actually made the stop of the vehicle. 

 

            A.        Yeah.  Ms. Rossignol was eating a Sonic burger.  I told her to go back to the vehicle and she started eating a Sonic burger. 

 

There is no indication that the burger belonged to Wilson or that Rossignol and Wilson had in fact stopped at Sonic after Donahue’s tip. 

            Moreover, “[w]e look only at the facts known to the officer at the inception of the stop; an initially unlawful stop is not validated by the discovery of criminal activity.  Tanner v. State, 228 S.W.3d 852, 855 (Tex. App.—Austin 2007, no pet.) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963).  Because Brownlow did not discover the existence of the burger until after initiation of the investigative detention, this information could not be used to corroborate the tip.  Similarly, we disregard evidence cited by the State regarding Wilson’s mannerisms after the detention, as well as Brownlow’s testimony that Donahue’s tip was corroborated because he knew “the exact amount of drugs she was carrying.” 

            Viewing the evidence in the light most favorable to the trial court’s ruling, we give deference to the trial court’s fact-finding that the anonymous tip by Donahue was not sufficiently corroborated prior to initiation of the investigative detention. 

                        3.         Other Evidence of Reasonable Suspicion

            Brownlow testified that the residence “had been abandoned – or unoccupied for some time,” and was a “frequent[] target[] of burglary and theft.”  During cross-examination, Brownlow admitted that he had no knowledge of whether the house was currently occupied, and we have stated before that “[t]he fact that there had been [criminal] activity in the area, but not known to have been committed by the defendant, is not sufficient to corroborate an anonymous tip.”  Johnson v. State, 146 S.W.3d 719, 722 (Tex. App.—Texarkana 2004, no pet.). 

            After reviewing the record, we conclude deference is warranted to the trial court’s determination that the State failed to meet its burden of proof to demonstrate Brownlow had reasonable suspicion prior to initiation of the investigative detention.

IV.       CONCLUSION

            We affirm the trial court’s judgment.

 

 

                                                                        Jack  Carter

                                                                        Justice

 

Date Submitted:          March 9, 2011

Date Decided:             March 18, 2011

 

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[1]The State’s appeal was made in accordance with our Code of Criminal Procedure, authorizing us to exercise jurisdiction.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010).

[2]Brownlow later divulged the informant’s identity as Wilson’s boyfriend, Jacob Donahue.  As set forth below, the record is unclear whether the informant’s identity was known at the time of the telephone call, or was deciphered at a later date:

 

                Q.            . . . you actually spoke with the informant, and his name was Jacob Donahue; is that correct?

                A.            Correct.

                Q.            Mr. Donahue is obviously identified or was identified at the time; is that correct?

                A.            Yes.

                Q.            And you thought he was credible; is that correct?

                A.            Yes.

                Q.            Did he relay information to you concerning the fact that his girlfriend, Jamie Lea Wilson, was engaged in drug activity?

                A.            Yes.

                . . . .

                Q.            The - and part of that also the - the informant, that you originally listed as anonymous because you didn’t want to disclose the person -

                A.            Yes.

                Q.            - for h[is] safety reasons -

                A.            Yes.

                Q.            But, actually, it was just uniden [sic] - it was just actually at the time was not disclosed.

                A.            That’s correct.

                Q.            Let me refer to that for the record.  He was disclosed and you knew who he was at the time.  Right?

                A.            Yes.  When the report was done.

                Q.            It just stated he was anonymous and a supplement clarified that; is that correct?

                A.            Correct.

 

                This testimony gave rise to the court’s questioning of Brownlow in which he stated he did not know Donahue.  Based on this record, the trial court could have found Donahue was anonymous at the time of the call, except for his identification as Wilson’s boyfriend.  In any event, the State does not argue that Donahue was a named informant, but argues the information from the informant was corroborated by Wilson’s suspicious behavior.

[3]The girlfriend had previously given the police “information.”