COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00433-CR
JEFFREY W. MORRIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In a single issue, Appellant Jeffrey W. Morris appeals his conviction for
misdemeanor driving while intoxicated (DWI). We affirm.
II. Factual and Procedural History
Morris was charged with misdemeanor DWI. Prior to trial, he filed a motion
to suppress all physical evidence obtained by the Arlington Police Department as
1
See Tex. R. App. P. 47.4.
the fruit of an illegal search and seizure in violation of his federal and state
constitutional rights and code of criminal procedure article 38.23. After a
hearing,2 the trial court denied Morris‘s motion.
Timothy Beavers testified that he called 911 in the early morning of June
13, 2009, to report a truck traveling in a dangerous and erratic manner at a high
rate of speed on Interstate 30. He provided an Arlington Police Dispatcher with
his contact information, a description of his vehicle, a description of the truck, the
truck‘s license plate number, and the truck‘s approximate location on I-30.
Beavers followed the truck and relayed its actions to the dispatcher—speeding,
almost rear-ending another vehicle, almost hitting a retaining wall, and fish-tailing
through a turn. After the truck stopped at a residence, Beavers parked on a
street near the front of the house and provided the dispatcher with the address
and a description of the driver who had pulled into the driveway, exited the truck,
and remained outside of the house. Beavers stated that he waited until the
police arrived and that ―as the officer was driving up into the driveway, [a person
later identified as Morris] walked out to meet the officer. He walked out from
behind the vehicle and they met.‖ [Emphasis added.] At the end of Beavers‘s
testimony, a recording of the 911 call was admitted into evidence and played for
the jury.
2
The record does not contain a transcript of the pretrial hearing.
2
Responding Arlington Police Officer Neil Landfield, dispatched to the
residence on a ―DWI complainant following‖ call, testified that he did not speak to
Beavers but saw Beavers point in the direction of the residence. Officer
Landfield observed a truck matching the suspect vehicle‘s description in the
driveway and a man standing outside of the house and, with his overhead lights
flashing, pulled his police vehicle into the driveway, blocking the truck from
exiting. He also said that after he exited his patrol car he either approached
Morris or requested that Morris approach him and asked Morris, who appeared
confused, had slurred speech, and smelled of alcohol, if he had been driving.
Morris, who had keys in his hand, admitted that he had been driving, that he had
been at a bar in Fort Worth, and that he probably should not have driven home.
Morris objected to Officer Landfield‘s testimony, argued that Officer
Landfield‘s actions violated his federal and state constitutional rights against
unreasonable searches and seizures, and reurged his motion to suppress all
physical evidence obtained by the Arlington police department. The trial court
granted Morris a running objection and carried Morris‘s motion along at trial.
Officer Landfield stated that because Morris became irate during their
conversation, he told Morris to sit cross-legged on the curb. Officer Landfield
repeated this during cross-examination:
[Morris‘s Attorney:] And you did have a conversation with
Mr. Morris?
[Officer Landfield:] Yes.
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[Morris‘s Attorney:] And some -- at some point during
that conversation you asked him to
sit down Indian style with hands on
his knees in his driveway?
[Officer Landfield:] Absolutely.
Arlington Police Officer Hyder testified that he arrived nineteen minutes
after Officer Landfield; that Morris was being detained at the time he arrived; and
that because Morris smelled of alcohol, had slurred speech, and glassy and
watery or blood-shot eyes, he conducted field sobriety tests, determined that
Morris was intoxicated, and arrested him.
At the end of the first day of trial, the trial court held a hearing on Morris‘s
reurged motion to suppress. Morris testified that Officer Landfield ordered him to
sit down with his legs crossed before he asked any questions, that he was
confused because he did not know what was going on with the vehicle at the end
of his driveway, and that he did not feel free to leave at that point. On cross-
examination, Morris said ―[t]hat‘s absolutely what happened, yes[]‖ when asked
―[a]nd did [the police] encounter you and merely start asking you questions?‖
Morris also stated that the police did not tell him that he was detained until after
he had answered their initial questions. The trial court again carried Morris‘s
motion along at trial.
After both parties rested, the trial court heard additional arguments on
Morris‘s motion and concluded that Morris consented to speak with Officer
Landfield, determined that the encounter was voluntary, and denied Morris‘s
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motion to suppress.3 Morris then argued that a factual issue existed as to the
legality of the evidence obtained and requested a jury instruction pursuant to
code of criminal procedure article 38.23. The trial court denied Morris‘s request.
A jury found Morris guilty, and the trial court assessed punishment of 120 days‘
confinement and a $2,000 fine. This appeal followed.
III. Article 38.23 Instruction
In his sole issue, Morris complains that ―[b]ecause there was a material
disputed fact concerning how the evidence to establish ‗reasonable suspicion‘ . .
. was obtained, the trial court erred by denying Morris‘s request for a 38.23 jury
instruction.‖ Morris cites three reasons to support his complaint: (1) there is a
material disputed fact because the jury heard contradicting testimony by Officer
Landfield concerning his initial encounter with Morris, (2) Officer Landfield‘s
testimony affirmatively contested evidence of their encounter, and (3) whether
the evidence suggested that Officer Landfield intimidated Morris into answering
his questions or if Morris consented to speak with Officer Landfield is a material
factual dispute because Officer Landfield‘s reasonable suspicion arose during the
parties‘ conversation.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); see also Sakil
3
The trial court documented these findings in its written findings of fact and
conclusions of law.
5
v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must
determine whether error occurred. If so, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at
731–32.
B. Applicable Law
Article 38.23(a) states:
(a) No evidence obtained by an officer or other person in violation of
any provisions of the Constitution or laws of the State of Texas, or of
the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2009).
Article 38.23 requires a jury instruction only if there is a genuine dispute
about a fact that is material to the admissibility of the challenged evidence. See
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden v.
State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); Pierce v. State, 32
S.W.3d 247, 251 (Tex. Crim. App. 2000). A defendant must establish three
foundation requirements to trigger an article 38.23 instruction: (1) the evidence
heard by the jury must raise an issue of fact; (2) the evidence on that fact must
be affirmatively contested; and (3) the contested factual issue must be material to
the lawfulness of the challenged conduct in obtaining the evidence claimed to
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have been seized illegally. See Oursbourn, 259 S.W.3d at 177; Madden, 242
S.W.3d at 510. The defendant must offer evidence that, if credited, would create
a reasonable doubt as to a specific factual matter essential to the admissibility of
the challenged evidence. See Oursbourn, 259 S.W.3d at 177; Madden, 242
S.W.3d at 510; 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal
Practice and Procedure § 4.194 (2d ed. 2001). ―And if other facts, not in dispute,
are sufficient to support the lawfulness of the challenged conduct, then the
disputed fact issue is not submitted to the jury because it is not material to the
ultimate admissibility of the evidence.‖ Madden, 242 S.W.3d at 510 (emphasis
added).
C. Analysis
The jury heard Beavers‘s uncontroverted testimony that Morris approached
Officer Landfield‘s patrol unit as it pulled into Morris‘s driveway. Beavers‘s
testimony supports the trial court‘s ruling that the parties‘ encounter was
consensual. Thus, we conclude that because an undisputed fact supports the
lawfulness of the encounter, no disputed fact issue material to the legal question
of ―reasonable suspicion‖ to detain Morris existed, and the trial court properly
denied Morris‘s requested jury instruction. See Madden, 242 S.W.3d at 513; see
also State v. Woodard, No. PD-0828-10, 2011 WL 1261320, at *4 (Tex. Crim.
App. Apr. 6, 2011) (noting that the defendant has initial burden to show that he
was seized without a warrant and that a ―stop‖ to make an inquiry, on its own,
does not show a seizure and holding consensual an encounter between an
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officer investigating a single-car accident who stopped and questioned a person
walking on a sidewalk approximately one quarter of a mile from the accident
scene who was wearing clothing matching the ―vague description of the driver‘s
clothing‖ provided by an anonymous tipster); State v. Garcia-Cantu, 253 S.W.3d
236, 243 (Tex. Crim. App. 2008) (recognizing that police officers are free to
approach a residence to ask to speak with an individual and that such conduct
does not constitute a seizure until the officer engages in coercive, offensive, or
threatening conduct); cf. State v. Garcia, 859 S.W.2d 125, 127 (Tex. App.—Fort
Worth 1993, pet. ref‘d) (noting that a person standing in the front yard of a
residence does not have a reasonable expectation of privacy).
However, even assuming arguendo that the parties‘ encounter was not
consensual, Officer Landfield had reasonable suspicion to undertake an
investigative detention. Under the Fourth Amendment, a temporary detention is
justified when the detaining officer has specific articulable facts which, taken
together with rational inferences from those facts, lead the officer to conclude
that the person detained is, has been, or soon will be engaged in criminal activity.
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968).
The factual basis supporting reasonable suspicion need not arise from the
officer‘s personal observation, but may be supplied by information acquired from
another person. See Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921,
1924 (1972). It has been widely recognized that the reliability of a citizen-
informant is generally shown by the nature of the circumstances under which the
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incriminating information became known to him or her. Brother v. State, 166
S.W.3d 255, 258 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1150 (2006).
The trial court issued the following relevant written findings of fact and
conclusions of law: that at approximately 2:50 a.m. on June 13, 2009, Beavers
called 911, identified himself, reported an erratic and unsafe driver on I-30,
described the suspect vehicle as a white pickup, and provided the vehicle‘s
license plate number; that Beavers followed the driver to a residence, relayed the
residence‘s address to the 911 dispatcher, informed the 911 dispatcher that a
white male had exited the suspect vehicle and had remained outside the
residence; that Beavers waited at the residence for the police to arrive; that
Beavers was still on the phone with the 911 dispatcher when Officer Landfield
arrived on scene; that Officer Landfield observed Beavers pointing in the
direction of the white male; that Officer Landfield observed a white male standing
in the yard of the residence and a white truck matching the suspect vehicle‘s
description in the residence‘s driveway; that Arlington police dispatchers provide
information derived from incoming calls via a computerized system referred to as
―call texts‖ or ―call sheets‖; that the white male in the yard matched the
description that Officer Landfield received in his call text; that the call text Officer
Landfield received contained Beavers‘s name, cell phone number, vehicle
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description, and location; that Officer Landfield made contact with the white male
in the yard; and that the white male in the yard was later identified as Morris.4
At trial, Officer Landfield testified that as he approached Morris, he
observed that Morris appeared confused, had slurred speech, smelled of alcohol,
and had keys in his hand. Even prior to Officer Landfield asking Morris a single
question, viewing the totality of the circumstances, Officer Landfield‘s
observations combined with the information provided by Beavers via the 911
dispatch call text provided Officer Landfield with reasonable suspicion to detain
Morris long enough to determine if a crime was afoot. See Brother, 166 S.W.3d
at 259–60 (finding reasonable suspicion for investigative detention based on
information supplied by citizen-informant); Pipkin v. State, 114 S.W.3d 649, 654–
55 (Tex. App.—Fort Worth 2003, no pet.) (holding that report of erratic driving
relayed to a dispatcher, combined with suspect vehicle‘s description and location
and citizen-informant‘s identifying information, provided adequate corroboration
for the officer to have reasonably concluded that the information was reliable and
justified a temporary detention); State v. Stolte, 991 S.W.2d 336, 342–43 (Tex.
App.—Fort Worth 1999, no pet.) (holding that information from citizen-informant
who was unidentified prior to the detention, but who provided specific details
about suspect vehicle and an ongoing account of suspect vehicle‘s actions to a
4
Because these findings are supported by the record, we defer to them in
our review. See State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App.
2008).
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police dispatcher, rendered the information sufficiently reliable to justify an
investigative stop).
We overrule Morris‘s sole issue.
IV. Conclusion
Having overruled Morris‘s sole issue, we affirm the trial court‘s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2011
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