Shawncy W. Perez v. State

NUMBER 13-07-00179-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SHAWNCY W. PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law
of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Garza

Appellant, Shawncy W. Perez, was charged by information with driving while

intoxicated (“DWI”), his second DWI offense. See TEX . PENAL CODE ANN . § 49.04 (Vernon

2003), § 49.09(a) (Vernon Supp. 2007) (providing that a second DWI offense constitutes

a Class A misdemeanor). Perez pleaded guilty to the charges contained in the information,
and the trial court assessed punishment at 365 days confinement in the Kleberg County

Jail suspended for 24 months of community supervision and a fine of $750.00. By one

issue, Perez contends that because the stop of his vehicle was illegal and unconstitutional,

evidence supporting the alleged DWI offense was the “fruit of [an] unlawful detention.” See

U.S. CONST . amends. IV, V, VI, XIV; see also TEX . CONST . art. 1, § 9 (barring unreasonable

searches and seizures); TEX . CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005) (prohibiting

evidence illegally seized to be used against an accused in a criminal trial). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 27, 2006, Perez was charged by information with DWI. See TEX .

PENAL CODE ANN . § 49.04; id. § 49.09(a). The information contained an enhancement

paragraph providing that Perez had been previously convicted of DWI on November 25,

2003. The charges against Perez stemmed from a traffic stop initiated by Kingsville Police

Officer Ted Figueroa during the evening hours of August 26, 2006.

On October 4, 2006, Perez filed a motion to suppress evidence seized by law

enforcement in connection with his detention and arrest. On January 16, 2007, the trial

court conducted a hearing on Perez’s motion to suppress. At the hearing, only one witness

was called: Officer Figueroa.

Officer Figueroa testified that he was a police officer for the City of Kingsville and

that he was patrolling the parking lot of RAX Sports Bar in Kingsville, Texas on the night

of Perez’s arrest. While patrolling the parking lot, Officer Figueroa was approached by an

unidentified female who told the officer she had spotted a male and a female in a maroon

Blazer fighting and arguing. She further described the vehicle as having several pipes on

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the front grill which were used for storing fishing poles. The woman told Officer Figueroa

that she observed the male punch the female occupant of the vehicle during the course of

the argument.1 She also noted that she did not know the occupants of the vehicle and that

the vehicle was headed northbound on 14th Street in Kingsville.

Fearing for the safety of the vehicle’s occupants, Officer Figueroa advised the

Kingsville Police Department dispatch operator of the alleged events and proceeded to

drive down 14th Street. Once Officer Figueroa located the vehicle matching the description

provided by the unidentified woman, he initiated a traffic stop to check on the welfare of the

vehicle’s occupants and to determine if any medical attention was needed.2 Officer

Figueroa testified that once he pulled over Perez, he identified himself, advised Perez of

the reason for the stop, and asked Perez to exit and step to the rear of the vehicle. Officer

Figueroa also instructed the female occupant to step to the front of the vehicle. Officer

Figueroa noted that he did this to question both parties separately about the alleged

assault to prevent either party from intimidating the other. Officer Figueroa noted that at

the time he first identified himself to Perez and the female occupant, both parties smelled

of alcohol. He further stated that both parties had red, watery eyes; Perez’s speech was

slurred; Perez had a hard time keeping his balance; and that the vehicle smelled of

alcohol.

In spite of this finding, Officer Figueroa commenced the questioning of both parties

1
On cross-exam ination, Officer Figueroa testified that he did not know who the unidentified wom an
was and that she had not provided the police with inform ation in the past.

2
Officer Figueroa noted that he pulled over Perez’s vehicle without observing any traffic violations;
he adm itted that the traffic stop was based solely on the unidentified wom an’s report and his duty to ensure
that the parties were safe. At the tim e of the stop, Perez did not have any outstanding warrants for his arrest.

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concerning the alleged assault. According to Officer Figueroa, both parties stated that no

assault had taken place, but that they were merely arguing over an unidentified issue.

Both parties indicated that everything was alright. Neither party exhibited any injuries.

Officer Figueroa then asked Perez if he had been drinking. Perez stated that he had drank

three or four alcoholic beverages that evening.

Officer Figueroa then testified that while questioning Perez, Officer Cindy Garcia

arrived at the scene and conducted field sobriety tests on Perez. Officer Figueroa

explained that Officer Garcia conducted the sobriety tests because she was more qualified

to do so and because he had returned to his squad car to check Perez’s background for

any outstanding warrants or arrests. Subsequent to Officer Garcia’s administration of the

field sobriety tests, Perez was placed under arrest for DWI and taken to the Kleberg

County Jail.

Officer Figueroa further testified that the entire investigation was conducted in

accordance with normal police procedures and that had Perez not exhibited characteristics

of alcohol intoxication, he would have been immediately released from the brief detention

upon Officer Figueroa’s conclusion that no assault had taken place. Officer Figueroa

stated that the female occupant was not arrested and was picked up from the scene by an

unidentified party.

After the hearing, the trial court denied Perez’s motion to suppress on January 16,

2007. On March 12, 2007, Perez filed a “MISDEMEANOR PLEA: WAIVER OF JURY,

REQUEST TO WAIVE PRESENTENCE INVESTIGATION, AND APPLICATION FOR

PROBATION OF SENTENCE.” In this filing, Perez pleaded guilty to the offense of DWI,

his second DWI offense. The trial court accepted Perez’s plea of guilt and subsequently

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sentenced him to 365 days’ confinement in the Kleberg County Jail suspended for 24

months of community supervision, and imposed a $750.00 fine.

The record does not contain a motion for new trial filed by Perez. However, he filed

a notice of appeal on March 12, 2007. The trial court certified Perez’s right to appeal on

March 14, 2007. This appeal ensued.3

II. STANDARD OF REVIEW

Whether a specific search or seizure was reasonable is a mixed question of law and

fact and is reviewed de novo. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.

2007) (citing Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004)). We do not

engage in our own factual review, rather the trial judge is the sole trier of fact and judge of

credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). Trial courts are given almost complete deference in determining historical

facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review the

record to determine whether the trial court's ruling is supported by the record and correct

under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003). "We conduct a de novo review of evidence when the

resolution of mixed questions of law and fact do not turn on an evaluation of credibility and

demeanor." St. George, 237 S.W.3d at 725.

When, as in this case, there are no explicit fact findings, and neither party timely

3
As previously m entioned, Perez filed a m otion to suppress evidence pertaining to the alleged DW I
offense. A m otion to suppress is nothing m ore than a specialized objection to the adm issibility of evidence.
See Galitz v. State, 617 S.W .2d 949, 952 (Tex. Crim . App. 1981) (en banc); W ilson v. State, 857 S.W .2d 90,
94 (Tex. App.–Corpus Christi 1993, pet. ref’d). Therefore, Perez’s issue has been preserved for appeal. See
T EX . R. A PP . P. 33.1(a).

5
requested findings and conclusions, we imply the necessary fact findings that would

support the court's ruling if the evidence, viewed in the light most favorable to the court's

ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App.

2006).

III. ANALYSIS4

In his sole issue on appeal, Perez contends that the stop of his vehicle was illegal

and constituted an illegal search and seizure. Specifically, Perez argues that because

Officer Figueroa detained him based solely on an uncorroborated anonymous tip, evidence

of his DWI offense was the “fruit of [an] unlawful detention” and, therefore, inadmissible.

a. Reasonableness of the Detention

The Fourth Amendment to the United States Constitution and article 1, section 9 of

the Texas Constitution guarantee the right of the people to be secure against unreasonable

searches of their persons, houses, papers, and effects. See U.S. CONST . amend. IV; TEX .

CONST . art.1, § 9. The Texas Court of Criminal Appeals has recognized three categories

of interactions between police officers and citizens: encounters, investigative detentions,

and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Investigative

detentions and arrests are considered seizures for Fourth Amendment purposes. See

Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994); see also Saldivar v. State,

209 S.W.3d 275, 281 (Tex. App.–Fort Worth 2006, no pet.).

4
The State has not filed an appellate brief in response to Perez’s contentions. See Siverand v. State,
89 S.W .3d 216, 219 (Tex. App.–Corpus Christi 2002, no pet.) (“The Texas Rules of Appellate Procedure
require appellant to either file a brief or state that he no longer desires to prosecute the appeal. T EX . R. A PP .
P. 38.8(b). However, there is no corresponding rule requiring the State to file a brief in response to appellant’s
brief.”). It was not incum bent upon the State to file an appellate brief in response to Perez’s claim .

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 In deciding whether Perez's detention was reasonable, we view the trial court's

factual findings in the light most favorable to its ruling, but we decide the issue of

reasonableness as a question of Fourth Amendment law under United States Supreme

Court precedent. Kothe, 152 S.W.3d at 63. In Kothe, the court noted that the supreme

court has stated that "Fourth Amendment 'reasonableness' is measured 'in objective terms

by examining the totality of the circumstances'; it 'eschew[s] bright-line rules, instead

emphasizing the fact-specific nature of the . . . inquiry.'" Id. (quoting Ohio v. Robinette, 519

U.S. 33, 39 (1996)).

Routine traffic stops are analogous to investigative detentions and are governed by

Terry v. Ohio, 392 U.S. 1 (1968); Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.–Fort

Worth 2007, pet. dism'd); Gansky v. State, 180 S.W.3d 240, 242-43 (Tex. App.–Fort Worth

2005, pet. ref'd). A Terry analysis has two prongs. See Terry, 392 U.S. at 19. First, a

court must decide if an officer's action was justified at its inception. St. George, 237

S.W.3d at 725-26 (citing Terry, 392 U.S. at 19-20). Second, the court must determine

whether the search and seizure was reasonably related in scope to the circumstances that

justified the interference in the first place. Id. at 726; Kothe, 152 S.W.3d at 63.

To determine “reasonableness,” we utilize an objective standard, asking whether

the facts available to the officer at the moment of the search or seizure warrant a person

of reasonable caution to believe that the action taken was appropriate. Terry, 392 U.S. at

21-22; Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). Furthermore, we

balance the nature of the intrusion into an individual’s right to be free of arbitrary detentions

and intrusions against the public interest at stake. Zayas v. State, 972 S.W.2d 779, 789

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(Tex. App.–Corpus Christi 1998, pet. ref’d). An investigative detention not based on

reasonable suspicion is unreasonable and, thus, violative of the Fourth Amendment. See

Davis, 947 S.W.2d at 243; see also Adams v. Williams, 407 U.S. 143, 145-46 (1972)

(intimating that an investigation is considered to be a lesser intrusion upon one’s personal

security); Milton v. State, 549 S.W.2d 190, 193 (Tex. Crim. App. 1977) (same).

b. Whether Officer Figueroa’s Action was Justified at its Inception

The test for determining the legality of a stop that warrants further investigation is

whether the officer can point to specific articulable facts, which in light of the officer’s

personal knowledge and experience, together with other inferences from those facts, would

warrant such an intrusion. Vannatta v. State, 773 S.W.2d 771, 773 (Tex. App.–Corpus

Christi 1989, writ dism’d). A police officer may briefly stop a suspicious individual in order

to determine his identity or to maintain the status quo momentarily while obtaining more

information. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). However, there

must be a “reasonable suspicion” by the officer that some activity out of the ordinary is

occurring or had occurred, some suggestion to connect the detained person with the

unusual activity, and some indication that the activity is related to crime. Gurrola, 877

S.W.2d at 302. “Where the initial detention is unlawful, any evidence seized subsequent

to such a detention is inadmissible.” Id.

Texas courts have repeatedly held that an anonymous tip may provide sufficient

justification for police officers to commence an investigation. See Clemons v. State, 605

S.W.2d 567, 570 (Tex. Crim. App. 1980); Mann v. State, 525 S.W.2d 174, 176 (Tex. Crim.

App. 1975); George v. State, 509 S.W.2d 347, 348 (Tex. Crim. App. 1974); see also

8
Vannatta, 773 S.W.2d at 773; 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).

In Ramirez, for example, an unidentified passerby approached a patrolling police

officer and told him that a “Latin male wearing a yellow T-shirt had a gun in a nearby bar.”

672 S.W.2d at 481-82. The officer went to the bar, identified the suspect, asked him to

step outside, frisked him, and found a pistol. Id. The court of criminal appeals held that

the actions of the officer were valid under Terry, with the report of the offense and the

description of the accused giving rise to a reasonable suspicion to justify the stop. Id.

Conversely, in Glass v. State, 681 S.W.2d 599 (Tex. Crim. App. 1984), the court of

criminal appeals concluded that an anonymous tip did not authorize a stop. In Glass, a

dispatcher for the Austin Police Department received a call from an anonymous person

who stated that the drivers of a “brown over beige El Camino” and a “blue Fairlane” were

shooting at each other near the intersection of Parker and Oltorf Streets. Id. at 600. After

stationing themselves at the reported intersection, Austin police officers spotted a brown

and beige El Camino.5 Id. The officers stopped the vehicle and asked the driver to step

out. Id. at 601. A search of the passenger compartment revealed two pistols and

methamphetamine. Id.

The court of criminal appeals concluded that the investigative stop did not meet the

standards set forth in Terry. Specifically, the court noted:

5
T he court of crim inal appeals noted that once the police officers stationed them selves at the
intersection, “they saw no unusual activity occurring or taking place, such as persons in one vehicle shooting
at persons in another vehicle” and that they observed the “brown over beige El Cam ino” traveling south on
Parker Lane about three or four m inutes after they had arrived at the intersection. Glass v. State, 681 S.W .2d
599, 600 (Tex. Crim . App. 1984).

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 In this instance, the record does not reflect when the alleged incident
occurred or when the anonymous report was received, and therefore does
not show any proximity of time of the stop to the events held by the court of
appeals to justify the stop of the vehicle appellant had been driving. Without
such proximity in time, it would not be reasonable to conclude, solely on the
basis of the match of color and make of the car, that the car stopped was the
car involved in the reported incident. Thus, the record does not support a
finding that the anonymous tip authorized the stop of the automobile driven
by appellant.

Id. at 601-02 (emphasis added).

In the instant case, the justification for the stop of Perez’s vehicle is more akin to the

situation in Ramirez than in Glass. Here, an unidentified female approached Officer

Figueroa in person and gave him specific information about a possible assault, which is a

criminal act as defined in the penal code. See TEX . PENAL CODE ANN . § 22.01(a) (Vernon

Supp. 2007).6 The unidentified female noted that Perez had just left the RAX Sports Bar

in his maroon Blazer with pipes on the grill, that she observed Perez punch his female

companion, and that he was heading northbound on 14th Street. Moreover, the

unidentified female provided Officer Figueroa with the necessary information with respect

to proximity in time such that Perez’s stop was not solely premised on the “match of color

6
Section 22.01(a) of the Texas Penal Code provides:

(a) A person com m its an offense [of assault] if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including
the person’s spouse;

(2) intentionally or knowingly threatens another with im m inent bodily injury, including
the person’s spouse;

(3) intentionally or knowingly causes physical contact with another when the person
knows or should reasonably believe that the other will regard the contact as offensive
or provocative.

T EX . P EN AL C OD E A N N . § 22.01(a) (Vernon Supp. 2007).

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and make of the car.” See Glass, 681 S.W.2d at 601-02.

Perez, however, relies heavily on Justice Stevens’s dissent in Alabama v. White,

496 U.S. 325, 333 (1990) for the contention that because the woman was unidentified and

had not given information to the police before, the information relied upon by Officer

Figueroa did not establish reasonable suspicion for the stop of Perez’s vehicle. In White,

Justice Stevens commented that:

[a]nybody with enough knowledge about a given person to make her a target
of a prank, or to harbor a grudge against her, will certainly be able to
formulate a tip about her like the one predicting Vanessa White’s excursion.
In addition, under the Court’s holding, every citizen is subject to being seized
and questioned by any officer who is prepared to testify that the warrantless
stop was based on an anonymous tip predicting whatever conduct the officer
just observed.

Id.

The majority in White acknowledged Justice Stevens’s concerns but emphasized

the importance of the reporter’s “veracity,” “reliability,” and “basis of knowledge” in deriving

reasonable suspicion. Id. at 328-29. Specifically, the White majority noted that “[s]ome

tips, completely lacking in indicia of reliability, would either warrant no police response or

require further investigation before a forcible stop of a suspect would be authorized.” Id.

at 329. The White majority further intimated that the officer must articulate something

more than an “inchoate and unparticularized suspicion or ‘hunch’” and that the Fourth

Amendment requires “some minimal level of objective justification” for making the stop.

Id. at 329-30.

In the instant case, Officer Figueroa’s testimony at the motion to suppress hearing

established articulable facts that, based on his personal knowledge and experience,

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warranted such an intrusion of Perez’s security. The trial court concluded that the

unidentified woman provided honest and reliable information to Officer Figueroa given that:

she was present in the RAX Sports Bar parking lot where the alleged assault was

perpetrated by Perez; she approached Officer Figueroa personally; and the information

provided by the unidentified woman was generally true.7 See Ross, 32 S.W.3d at 855

(holding that the trial judge is the sole trier of fact and judge of credibility of the witnesses

and the weight to be given to their testimony). The unidentified woman: (1) accurately

described the make and model and Perez’s vehicle; (2) provided accurate information as

to the proximity of the alleged crime; (3) noted that she did not know Perez or his female

companion (i.e., seeming to negate any implication that the report was retaliatory in

nature); and (4) provided accurate information as to the parties involved. We note that

Officer Figueroa’s investigation did not yield conclusive evidence establishing that the

alleged assault took place; however, we conclude that Officer Figueroa had more than an

unparticularized suspicion to investigate the alleged assault and that a person of

reasonable caution would have investigated the potential for bodily harm to another in

these circumstances.

Officer Figueroa testified that upon receiving the information from the woman, he

quickly analyzed the veracity of the statements and concluded that the information received

was accurate and warranted an investigation. Officer Figueroa testified that his

determination as to the veracity of the unidentified female’s report comported with usual

7
It is noteworthy that in m aking the report of crim inal activity, the unidentified fem ale subjected herself
to crim inal liability— a class B m isdem eanor— for m aking a false report to a peace officer or law enforcem ent
em ployee. See T EX . P EN AL C OD E A N N . § 37.08 (Vernon 2003).

12
police customs and policies. Furthermore, in speaking to the unidentified woman, Officer

Figueroa was free to ask follow-up questions to further determine the honesty and veracity

of her statements. In examining the totality of the circumstances, we conclude that Officer

Figueroa provided sufficient articulable facts at the motion to suppress hearing to establish

a reasonable suspicion that Perez had assaulted his female companion, thus justifying the

stop.

c. Whether the Search and Seizure Reasonably Related to the Justification for the
Initial Interference

Under the second Terry prong, an investigative detention must be temporary and

last no longer than necessary to effectuate the purpose of the stop. See Florida v. Royer,

460 U.S. 491, 500 (1983); Kothe, 152 S.W.3d at 63; Davis, 947 S.W.2d at 243. Once an

officer concludes the investigation of the conduct that initiated the stop, a continued

detention is permitted only if there is reasonable suspicion to believe another offense has

been or is being committed. Saldivar, 209 S.W.3d at 282; see Davis, 947 S.W.2d at 243;

McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.–Fort Worth 2001, pet. ref’d); see also

Robinette, 519 U.S. at 41 (Ginsburg, J., concurring) (Once police satisfy the reason for the

stop, they may not use the stop as a “fishing expedition for unrelated criminal activity”). In

addition, the United States Supreme Court has refused to place any rigid time limits on

Terry stops; instead, the issue is “‘whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly, during which time

it was necessary to detain the defendant.’” Kothe, 152 S.W.3d at 64-65 (quoting United

States v. Sharpe, 470 U.S. 675, 685-86 (1985)).

Officer Figueroa testified that in determining whether the assault transpired, he

13
questioned both Perez and the female occupant separately, and he observed both parties

for visible signs of injuries. In questioning the parties about the alleged assault, Officer

Figueroa noticed that Perez: (1) smelled of alcohol; (2) had watery eyes; (3) slurred his

speech; and (4) had trouble keeping his balance. Based on these observations and

Perez’s admission that he had drank three or four alcoholic beverages that night, Officer

Figueroa had sufficient information to give him reasonable suspicion that Perez had been

driving while intoxicated. As a result, Officer Garcia commenced a battery of field sobriety

tests, which Perez failed and which ultimately led to his arrest. Officer Figueroa further

noted that after he concluded that an assault had not taken place, Perez would have been

free to leave the scene had signs of alcohol intoxication not been present.

The evidence demonstrates that the State satisfied the second prong of Terry and

that the continued detention of Perez to investigate a possible DWI offense was

permissible. See Davis, 947 S.W.2d at 243; Saldivar, 290 S.W.3d at 282.

In sum, we conclude that the evidence adduced at the motion to suppress hearing

demonstrated that the report made by the unidentified woman was sufficient to give Officer

Figueroa reasonable suspicion that an assault had been or was in the process of being

committed. Therefore, Officer Figueroa was justified in conducting a brief investigatory

detention in accordance with Terry. While in the process of investigating the alleged

assault, Officer Figueroa procured sufficient information to give him reasonable suspicion

that Perez had been driving while intoxicated. We are of the opinion that Officer Figueroa’s

actions did not constitute a “fishing expedition for unrelated criminal activity.” See

Robinette, 519 U.S. at 42 (Ginsburg, J., concurring); see also Davis, 947 S.W.2d at 243.

We further conclude that the evidence supporting Perez’s conviction for driving while

14
intoxicated was not the “fruit of [an] unlawful detention.” Accordingly, we overrule Perez’s

sole issue on appeal.

IV. CONCLUSION

We affirm the judgment of the trial court.

DORI CONTRERAS GARZA,
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 29th day of May, 2008.

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