In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-154 CR
______________________
DONALD HAYMAN CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 05-209788
Appellant Donald Hayman Carter pled guilty to the offense of driving while intoxicated. The trial court sentenced him to 180 days confinement in the county jail, suspended the imposition of the sentence, and placed him on community supervision for fifteen months. Carter appeals from a pretrial ruling denying his motion to suppress. We affirm.
Scott Bauer testified at the hearing on the motion to suppress. He testified he was on his way home from work when he observed a large light-colored SUV "touching the dotted lines on both sides of the road, just rhythmically back and forth." He followed the vehicle for a short time and then pulled beside it to see if the driver was distracted. The driver had both hands on the steering wheel and was looking straight ahead. At the hearing he identified Carter as the vehicle's driver.
Bauer called 911 to report a possible drunk driver. Harris County dispatch picked up the call; Bauer described his observations and provided the vehicle's license plate number. He stayed on the phone with dispatch while he followed the vehicle into Montgomery County. Harris County dispatch transferred Bauer to Montgomery County's dispatch. He stayed on the phone with dispatch as he followed the vehicle through Conroe. He observed the vehicle straddling the center lane and then braking hard into a violent exit. Bauer followed the vehicle into the subdivision where Bauer lived. He saw an officer standing next to a patrol car in the subdivision. Bauer indicated to the officer that the vehicle Bauer was following was the vehicle described by dispatch. He followed the patrol car to the location where the officer pulled the vehicle over. Bauer stayed and provided a statement.
Deputy Sheriff C.D. Flowers with the Montgomery County Sheriff's Department also testified at the hearing. He was patrolling Walden Road when he received a dispatch related to a citizen who was following a person believed to be intoxicated. He identified Bauer's vehicle as described by dispatch and saw Bauer flash his lights. Dispatch provided a description of Carter's vehicle and the license plate number. Officer Flowers confirmed the vehicle's license plate number matched the dispatched license plate number and pulled the vehicle over.
In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to a trial court's determination of historical facts and review de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). When the trial court, as in this case, does not make explicit findings of facts, we review the evidence in a light most favorable to the ruling and assume implicit findings of fact supported by the record. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000)). (1) As the factfinder and sole judge of a witness's credibility and the weight to be given the testimony, the trial judge may choose to believe or disbelieve any or all of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We must sustain the trial judge's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005).
Carter presents three issues on appeal. He first maintains the record fails to reflect Flowers had specific articulable facts warranting an investigatory stop of Carter's vehicle. Under the Fourth Amendment, an officer may temporarily detain a person when the officer has specific articulable facts which, considered with rational inferences from those facts, lead the officer to conclude the person detained is, has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (citing Adams v. Williams, 407 U.S. 143, 147 , 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)). A stop based on facts provided by a citizen-eyewitness and adequately corroborated by the arresting officer does not violate the Fourth Amendment. Brother, 166 S.W.3d at 259.
Officer Flowers testified dispatch informed him a citizen-eyewitness was following a person believed to be intoxicated. Dispatch relayed a description of the vehicle and the license plate number. Bauer identified himself to dispatch and stayed on the phone for many miles while he followed Carter. He provided dispatch detailed facts regarding Carter's erratic driving. Officer Flowers testified Bauer identified Carter to him by flashing his lights. Flower confirmed Carter's license plate number was the number dispatched prior to pulling him over. Bauer, a disinterested eyewitness, followed and completed a statement.
Officer Flowers testified the information the dispatcher provided to him, together with his observing Carter failing to maintain a single lane of traffic, led him to believe Carter was a danger to himself or others. Although there was no other evidence presented at the hearing as to the facts relayed from dispatch to Officer Flowers, the trial court implicitly found the dispatcher relayed sufficient facts to Officer Flowers to justify the stop. Based on this record, Officer Flowers was aware of sufficient articulable facts to conclude Carter was driving while intoxicated. We overrule issue one.
Carter next contends Flowers' stop of his vehicle was not justified because Bauer's phone call to dispatch was uncorroborated. Corroboration does not mean an officer must personally witness the conduct that causes him to reasonably suspect criminal activity. Id. at 259 n.5. Corroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude the information he received is reliable and, therefore, justifies a temporary detention. Id. (citing Alabama v. White, 496 U.S. 325, 330-31, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990); Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.--Fort Worth 2003, no pet.). As the Court of Criminal Appeals stated in Brother, "To require officers who are apprised of detailed facts from citizen-eyewitnesses to observe suspects and wait until additional suspicious acts are committed, would be foolish and contrary to the balance of interest struck in Terry and its progeny." Brother, 166 S.W.3d at 259.
Officer Flowers witnessed Carter leave his lane of traffic before he pulled him over. The unsafe driving witnessed by Officer Flowers, together with the information Flowers received from dispatch, sufficiently corroborated facts provided by Bauer. The trial court did not err in concluding that, under the totality of the circumstances, the stop was reasonable.
Carter argues Flowers did not have probable cause to stop the vehicle for a moving violation because the State failed to prove a violation. Flowers testified he witnessed Carter failing to maintain a single lane of traffic but stated he only relied on the information he received over the radio in deciding to stop Carter. He did not stop Carter for a moving violation. Nevertheless, Officer Flowers had sufficient facts giving rise to reasonable suspicion to make an investigatory stop.
We overrule appellant's issues. The trial court's ruling denying the motion to suppress is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on October 5, 2006
Opinion Delivered November 29, 2006
Do Not Publish
Before Gaultney, Kreger and Horton, J.J.
1. But see State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006).