ACCEPTED
03-14-00806-CR
4723914
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/1/2015 10:52:20 AM
No. 03-14-00806-CR JEFFREY D. KYLE
CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas
4/1/2015 10:52:20 AM
JEFFREY D. KYLE
Clerk
DELANE DUMAS,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court-at-Law Number Five,
Travis County, Texas
Trial Cause No. C-1-CR-13-219171
STATE'S BRIEF
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
GISELLE HORTON
ASSISTANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
April 1, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ........................................ iii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND .................................................. 2
ISSUES PRESENTED .............................................. 4
SUMMARY OF THE STATE'S ARGUMENT ......................... 4
ARGUMENT
Reply Point One: The admissibility of State's Exhibit #4 under
Rule 403 is not preserved for review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reply Point Two: The trial court properly concluded that
the initial detention was lawful, and therefore properly
admitted State's Exhibit #3 .................................... 10
Reasonable suspicion, generally ......................... 11
The 9-1-1 call was inherently reliable, and therefore
sufficiently reliable to credit the allegation that an
erratically-driven dark or black station wagon with
a certain license number was at the predicted location
on the interstate highway ............................... 14
The law imputes the police dispatcher's knowledge of
the 9-1-1 call's details to the detaining officer. . . . . . . . . . . . . . 16
i
Discussion of Court of Criminal Appeals opinions that
illustrate the amount of corroboration required when the
informant's report is inherently reliable. . ................. 17
• Derichsweiler v. State: Police may lawfully
act on a called-in report of suspicious but not
inherently criminal activity ......................... 17
• Brother v. State: A motorist calls 9-1-1 to
describe a motorist's car, location, and erratic driving .. 19
The 9-1-1 call was sufficiently corroborated ............... 21
The substance of the 9-1-1 call objectively supported
reasonable suspicion to believe that criminal activity
was afoot. ............................................. 20
Additionally, the detaining officer had reasonable
suspicion independent of the detailed information
relayed in the 9-1-1 call. . ............................... 21
PRAYER ........................................................ 22
CERTIFICATE OF COMPLIANCE ................................. 23
CERTIFICATE OF SERVICE ....................................... 23
ii
INDEX OF AUTHORITIES
Statutes Page
TEX. PENAL CODE§ 37.08
(West Supp. 2014) ........................................... 15
Rules
TEX. R. APP. P. 33.1 .............................................. 7, 9
TEX. R. EVID. 401 .................................................. 9
TEX. R. EVID. 403 .................................................. 7
Cases
Adams v. Williams, 407 U.S. 143
(1972) ..................................................... 14
Alabama v. White, 496 U.S. 325
(1990) ..................................................... 12
Brother v. State, 166 S.W.3d 255
(Tex. Crim. App. 2005) ........................ 13, 14, 15, 19, 20, 21
Curtis v. State, 238 S.W.3d 376
(Tex. Crim. App. 2007) ....................................... 22
Derichsweiler v. State, 348 S.W.3d 906
(Tex. Crim. App. 2011) . . . . . . . . . . . 12, 13, 14, 15, 16, 17, 18, 19, 20, 21
Foster v. State, 326 S.W.3d 609
(Tex. Crim. App. 2010) ................................. 12, 13, 21
Hime v. State, 998 S.W.2d 893
(Tex. App.-Houston [14th Dist.] 1999, pet. ref' d) .................. 15
Illinois v. Gates, 462 U.S. 213
(1983) ..................................................... 14
Johnson v. State, 414 S.W.3d 184
(Tex. Crim. App. 2013) ....................................... 12
Martinez v. State, 348 S.W.3d 919
(Tex. Crim. App. 2011) ....................................... 15
Pipkin v. State, 114 S.W.3d 649
(Tex. App.-Fort Worth 2003, no pet.) ............................ 15
111
Reesing v. State, 140 S.W.3d 732
(Tex. App.-Austin 2004, pet. ref' d) ........................ 12, 15
Resendez v. State, 306 S.W.3d 308
(Tex. Crim. App. 2009) ........................................ 8
State v. Dixon, 206 S.W.3d 587
(Tex. Crim. App. 2006) ....................................... 11
State v. Fudge, 42 S.W.3d 226
(Tex. App.-Austin 2001, no pet.) .......................... 12, 14
State v. Nelson, 228 S.W.3d 899
(Tex. App.-Austin 2007, no pet.) ............................. 20
State v. Sailo, 910 S.W.2d 184
(Tex. App.-Fort Worth 1995, pet. ref' d) ....................... 15
State v. Stolte, 991 S.W.2d 336
(Tex. App.-Fort Worth 1999, no pet.) .............................. 15
Taflinger v. State, 414 S.W.3d 881
(Tex. App.-Houston [1st Dist.] 2013, no pet.) ..................... 14
Terry v. Ohio, 392 U.S. 1
(1968) .................................................. 12, 13
United States v. Basey, 816 F.2d 980
(5th Cir. 1987) ............................................... 15
United States v. Sierra-Hernandez, 581 F.2d 760
(9th Cir. 1978) .............................................. 15
Ware v. State, 724 S.W.2d 38
(Tex. Crim. App. 1986) ........................................ 14
Woods v. State, 956 S.W.2d 33
(Tex. Crim. App. 1997) ....................................... 13
IV
STATEMENT OF THE CASE
This is a defense appeal from a conviction for driving while
intoxicated (DWI), second offense? After the jury found him guilty of DWI,
Dumas pled "true" to the prior-conviction enhancement paragraph. CR
43-44; 3 RR 208. nn necember 11, 2014, the trial court assessed
punishment at one year in jail and a $4,000 fine, but suspended imposition
of this sentence and placed Dumas on community supervision for twenty
months. CR 44. As conditions of probation, Dumas was required to serve
five days in jail, surrender his driver's license for one year, participate in an
ignition interlock program, obtain drug and alcohol evaluations, attend
rehabilitative programs and courses, and complete 80 hours of community
service. CR 44-47. Dumas gave written notice of appeal the same day he
was sentenced. CR 55, 57.
The information contained two enhancement paragraphs, alleging an open
container and a prior DWI conviction. CR 13.
1
BACKGROUND
At around 11:00 p.m. on a Saturday night, Austin police Officer
Eberhardt responded to a call from the police dispatcher, who related that
a "OWl/reckless" driver was approaching Eberhardt's position from
northbound I-35. 3 RR 20. This information came to police attention from
an identified motorist's unsolicited 9-1-1 call. The dispatcher relayed the
car's description-a dark, maybe black station wagon-the car's license
plate number, and the motorist/caller's observation that the car had nearly
sideswiped him and had been seen going 90 miles per hour, swerving
between lanes. 3 RR 20, 22; 4 RR State's Exhibit #4 (the 9-1-1 call).
Eberhardt waited at the intersection of I-35 and Ben White
Boulevard. When a car matching the given description went by, he began
to follow it. 3 RR 22. He confirmed the car's license number with the
dispatcher, and saw the car weaving in its own lane. 3 RR 22-23; 4 RR
State's Exhibit #3 (the dashcam video) @ 10:56:21-10:56:46. Although
Eberhardt had not activated his overhead lights, the car he was following
exited the interstate, travelled briefly on the service road, then merged back
2
onto I-35 without signalling. 3 RR 23. Suspecting intoxication, Eberhardt
initiated a detention. 3 RR 24, 66.
Dumas, the driver, admitted to taking hydrocodone three to four
hours earlier, but denied consuming alcohol. 3 RR 32; 4 RR State's Exhibit
#3. Eberhardt found a nearly-empty flask of some alcoholic beverage in the
center console. 3 RR 80. Dumas's speech was slurred. 3 RR 33, 125. A
moderate odor of alcohol emanated from his person. 3 RR 28, 29. He had
difficulty tracking the officer with his eyes, and difficulty retrieving his
driver's license and proof of insurance. 3 RR 27-28. He was confused; he
stated that he was coming from a friend's house on Riverside and was
headed home to the "Y" on Highway 290, but the statement did not make
sense given his direction of travel. 3 RR 25. His balance was poor, and he
swayed while standing after getting out of his car. 3 RR 77, 123.
Dumas displayed all six clues on the horizontal gaze nystagmus test.
3 RR 47. He initially attempted other standardized field sobriety tests, but
gave up and refused to participate further when it became clear that he
couldn't perform them. 3 RR 53-54; 4 RR State's Exhibit #3. He told
3
Eberhardt that he could not complete the other tests because he had leg
and spinal conditions. 3 RR 53. No trial evidence, however, supported this
statement. Dumas refused to give a specimen of his breath or blood for
testing purposes. 3 RR 131-33.
ISSUES PRESENTED
One: Did the trial court err in overruling Dumas's Rule 403 objection
and admitting State's Exhibit #4, the recording of the identified informant's
call to 9-1-1?
Two: Was State's Exhibit #3, the dash cam video, unlawfully obtained
because the detaining officer was not aware of all the particulars of the
9-1-1 call and did not personally observe conduct amounting to a criminal
offense?
SUMMARY OF THE STATE'S ARGUMENT
One: Trial counsel never lodged a Rule 403 objection to State's
Exhibit #4. This point of error is therefore unpreserved.
Two: The law imputes the police dispatcher's knowledge of the 9-1-1
call's contents to Officer Eberhardt, a cooperating officer. The information
4
conveyed in the 9-1-1 call gave rise to reasonable suspicion, and was
sufficiently corroborated when the officer identified the offending vehicle
by its description, location, and license-plate number.
Independent of that corroboration, the totality of the circumstances
shows that the detaining officer personally observed conduct giving rise to
reasonable suspicion when he saw the car weave within its own lane late at
night, and exit and re-enter the interstate highway for no apparent reason.
Because the dashcam video was lawfully obtained, the trial court did not
abuse its discretion in admitting it.
ARGUMENT
Reply Point One: The admissibility of State's Exhibit #4
under Rule 403 is not preserved for review.
An identified motorist called 9-1-1 to report Dumas's erratic driving
on the night in question. A recording of that call was admitted at trial and
2
published to the jury as State's Exhibit #4. 3 RR 8, 60; 4 RR State's Exhibit
2
State's Exhibit #4 involves the transfer of a concerned motorist's 9-1-1 call
from the Hays County police dispatcher to the Travis County dispatcher; Dumas
was quickly leaving Hays and entering Travis County. Appellate counsel
mistakes the Hays County dispatcher's voice for that of a second 9-1-1 caller. But
5
#4. In it, a Hays County dispatcher briefly relayed the information from the
caller/motorist: a car described as a dark-colored station wagon with
license plate BXL 7952 was northbound on I-35, passing the 220 exit, and
about to enter Travis County. 4 RR State's Exhibit #4@ 0:06. The car was
"unable to maintain a single lane. It is in the middle lane at this time
driving approximately 90 miles per hour." 4 RR State's Exhibit #4@ 0:35.
The Hays County dispatcher then transferred the "reckless driving" call to
the Austin/Travis County 9-1-1 operator. State's Exhibit #4 @0:38.
The caller identified himself by name to the Travis County
dispatcher, gave his telephone number, and explained, "This guy we've
been following-he's been actually-he almost side-swiped us and so we
called 9-1-1 and he was real erratic on the speed." 4 RR State's Exhibit #4 @
0:44, 1:00. He verified the car's license plate number. 4 RR State's Exhibit #4
@1:20. He described what the station wagon was doing and its location:
"We're at exit 225. He's in the right hand lane. He's been everywhere from
there was only one caller, identified as J.D. Hines.
6
the left hand lane to the middle lane to side-swiping us. Oh. He's looking
down and texting." 4 RR State's Exhibit #4@ 1:39.
Dumas's first point contends that State's Exhibit #4-the recorded
9-1-1 call- was inadmissible under Rule 403 "because the probative value
of the two calls was substantially outweighed by the danger of unfair
prejudice, confusion of the issues, and misleading the jury[.]" Dumas's
Brief, p. 16. He speculates that, if the 9-1-1 call had not been admitted, "the
jury may have acquitted Dumas since the traffic stop video did not show
someone obviously intoxicated" or any traffic offenses. Dumas's Brief,
p. 16.
The trial court never heard or ruled on a Rule 403 objection to State's
Exhibit #4. For this reason, Dumas's first point is unpreserved. TEX. R. APP.
P. 33.1.
Rule 403 provides that relevant evidence may be excluded "if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury[.]" TEX. R. EVID.
403. Defense counsel's reference at trial to "unfair prejudice" did not put
7
the trial court on notice of a Rule 403 objection. When assessing a party's
trial complaint, courts must look at the context. Resendez v. State, 306
S.W.3d 308, 313 (Tex. Crim. App. 2009). Seen in context, the "unfair
prejudice" reference was made in furtherance of a confrontation objection:
"[T]here's a real danger of unfair prejudice [in admitting Exhibit #4], which
is why you have that right of confrontation." 3 RR 6-7. Indeed, the
following record excerpts show that Dumas objected to State's Exhibit #4
solely on Confrontation Clause grounds:
• "So the existence of the 911 call is admissible. But the content,
what the person said they saw, I've got a right to cross-examine them on."
3RR4.
• "But either way, I believe I have a right to confrontation of the
witness if they're going to get into the substance of what the witness
allegedly saw." 3 RR 4.
• "So without any opportunity to cross-examine [the 9-1-1
caller], certainly we have a confrontation objection." 3 RR 6.
• "The whole idea of confrontation is you want your own lawyer
to be able to ask the questions and not a person working for the court."
3RR7.
, • "I do believe that it violates the United States Constitution in
that he has a right to confront the witness." 3 RR 59.
8
No reasonable trial court could have understood from trial counsel's
arguments that Dumas was making a Rule 403 objection. Because Dumas's
contention on appeal fails to comport with his trial objections, his first
point of error is not preserved for review. TEX. R. APP. P. 33.1.
If the point had been preserved, the trial court properly admitted
State's Exhibit #4 for at least two reasons. First, the exhibit was relevane to
the elements of operating a motor vehicle while intoxicated. And second, it
gave contextual background by explaining why Eberhardt initially began
to observe the car Dumas was driving and eventually pulled it over. This
background information was necessary because the jury was instructed
that it must first find the detention lawful before it could decide guilt-
innocence. In short, evidence showing the reason for the initial
detention-which State's Exhibit #4 partially supplied-was of
consequence in determining the action, and was therefore admissible.
CR40-41.
3
Evidence is relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action. TEX. R. Evm. 401.
9
Reply Point Two: The trial court properly concluded that the
initial detention was lawful, and therefore properly admitted
State's Exhibit #3.
Dumas's second point contends that Officer Eberhardt did not have
reasonable suspicion to initially detain him, and that the entirety of State's
Exhibit #3, the dashcam video, was therefore inadmissible as fruit of the
poisonous tree. Dumas fails to note that part of State's Exhibit #3 depicts
events that transpired before the allegedly unlawful detention, and which
therefore could not be subject to suppression as unlawfully obtained.
Dumas also does not contend on appeal that any other evidence flowing
from the stop, such as the officer's testimony, was subject to suppression
under the exclusionary rule.
Dumas specifically contends that Eberhardt did not have reasonable
suspicion to detain because Eberhardt (1) was not aware of sufficient facts
from the 9-1-1 call, and (2) did not sufficiently corroborate the informant's
report by personally observing criminal conduct. Dumas's Brief, pp. 22-23.
Defense counsel did not object at trial to the admissibility of State's Exhibit
#3 or any other evidence on grounds that the 9-1-1 caller's information was
10
insufficiently corroborated. Instead, outside the jury's presence, he orally
moved to "suppress the entire stop" on grounds that Dumas had not
committed a traffic offense by failing to signal his exit off of and his re-
entry onto the interstate highway. 3 RR 62-63. The trial court agreed that
the transportation code did not "require a blinker," but overruled the
objection, concluding that "there was reasonable suspicion to stop the
vehicle to investigate either a reckless driving or a driving while
intoxicated charge based upon the evidence that's been admitted." 3 RR 70.
Appellate courts review a suppression ruling for an abuse of
discretion, viewing the record in the "light most favorable to the trial
court's conclusion and revers[ing] the judgment only if it is outside the
zone of reasonable disagreement." State v. Dixon, 206 S.W.3d 587, 590 (Tex.
Crim. App. 2006).
Reasonable suspicion, generally
A law enforcement officer may stop and briefly detain a person
suspected of criminal activity on less information than is constitutionally
required for probable cause to arrest, because a temporary detention for
11
investigation is considered a lesser intrusion upon personal security. Terry
v. Ohio, 392 U.S. 1, 21-22 (1968); Johnson v. State, 414 S.W.3d 184, 191 (Tex.
Crim. App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
App. 2011); Reesing v. State, 140 S.W.3d 732, 735 (Tex. App.-Austin 2004,
pet. ref' d); State v. Fudf\e,
-- -
42 S.W.3d 226, 229 (Tex. App.- Austin 2001, no
~ ~
pet.).
Reasonable suspicion is a less demanding standard not only in
the sense that it can be established with information that is
different in quantity or content than that required to establish
probable cause, but also in the sense that reasonable suspicion
can arise from information that is less reliable than that
required to show probable cause.
Derichsweiler, 348 S.W.3d at 916 n.41 (quoting Alabama v. White, 496 U.S. 325
(1990)).
To justify a brief detention for investigative purposes, the officer
must be able to articulate something more than an "inchoate and
unparticularized suspicion or hunch." Foster v. State, 326 S.W.3d 609, 613-
14 (Tex. Crim. App. 2010). Specifically, the officer must have some minimal
level of objective justification for making the stop. That is, the officer must
12
be able to "point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion" on
the freedom of the person being detained. Id. (citing Terry, 392 U.S. at 15);
see also Derichsweiler, 348 S.W.3d at 914; Brother v. State, 166 S.W.3d 255, 257
(Tex. Crim. App. 2005). A brief intrusion is warranted, for instance, where
the officer reasonably suspects that the person detained actually is, has
been, or soon will be engaged in criminal activity. Derichsweiler, 348 S.W.3d
at 914; Brother, 166 S.W.3d at 257. The reasonableness of a given detention
turns on the totality of the circumstances, and considers the public and
private interests that are at stake. Brother, 166 S.W.3d at 259 n.6.
The facts and circumstances that may provide reasonable suspicion
of criminal activity need not themselves be criminal in nature but may
include facts that in some way would increase the likelihood of the
presence or occurrence of criminal activity. Derichsweiler, 348 S.W.3d at 914;
Foster, 326 S.W.3d at 614; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.
1997). Additionally, the factual basis for stopping a vehicle need not arise
from the officer's personal observation, but may be supplied by
13
information acquired from another person. Derichsweiler, 348 S.W.3d at 914
(citing Adams v. Williams, 407 U.S. 143, 147 (1972)); Brother, 166 S.W.3d at
257. For instance, an officer may rely upon information received through
an informant, rather than on his direct observations, so long as the
informant's statement is reasonably corroborated by other matters within
the officer's knowledge. Illinois v. Gates, 462 U.S. 213, 242 (1983);
Derichsweiler, 348 S.W.3d at 915.
The 9-1-1 call was inherently reliable, and therefore sufficiently
reliable to credit the allegation that an erratically-driven dark or black
station wagon with a certain license number was at the predicted
location on the interstate highway.
The evidence clearly shows that the informant identified himself to
the police dispatcher. 4 RR State's Exhibit #4. Texas cases consistently and
uniformly hold that, when police receive information from an identified or
identifiable private citizen-eyewitness who initiates contact with the police
to report another person's suspected criminal act, that information is
4
inherently credible and reliable. Unlike a person who makes an
4
Derichsweiler, 348 S.W.3d at 914-15; Brother, 166 S.W.3d at 257; Ware v. State,
724 S.W.2d 38, 40 (Tex. Crim. App. 1986); Fudge, 42 S.W.3d at 232; Taflinger v.
14
anonymous telephone call, the identified or identifiable eyewitness-
informant puts himself in a position to be held accountable for his
intervention. See TEX. PENAL CODE§ 37.08 (West Supp. 2014) (false report to
a peace officer or law enforcement employee); Martinez v. State, 348 S.W.3d
919, 923 (Tex. Crim. App. 2011); see also Reesing, 140 S.W.3d at 737. Thus,
the reliability of the information is increased. State v. Sailo, 910 S.W.2d 184,
188 (Tex. App.-Fort Worth 1995, pet. ref' d) (quoting United States v. Sierra-
Hernandez, 581 F.2d 760, 763 (9th Cir. 1978)). And, where the reliability of
the information is increased, less corroboration is necessary. Martinez, 348
S.W.3d at 923 (citing Brother, 166 S.W.3d at 257); Derichsweiler, 348 S.W.3d
at 914.
State, 414 S.W.3d 881, 885 (Tex. App.-Houston [1st Dist.] 2013, no pet.); Pipkin v.
State, 114 S.W.3d 649, 655 (Tex. App.-Fort Worth 2003, no pet.); Hime v. State,
998 S.W.2d 893, 895 (Tex. App.-Houston [14th Dist.] 1999, pet. ref' d); State v.
Stolte, 991 S.W.2d 336, 341 (Tex. App.-Fort Worth 1999, no pet.). See also, United
States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) ("[C]itizen reports of criminal
activity have been deemed inherently reliable in Texas Terry-stop cases.").
15
The law imputes the police dispatcher's knowledge of the 9-1-1
call's details to the detaining officer.
Dumas contends among other things that Eberhardt did not have
reasonable suspicion because he did not personally know all the details of
the 9-1-1 call before he initiated a detention. But the law does not require
this. In assessing reasonable suspicion, "a reviewing court looks to the
totality of the objective information known collectively to the cooperating
police officers, including the 9-1-1 dispatcher." Derichsweiler, 348 S.W.3d at
915. "The detaining officer need not be personally aware of every fact that
objectively supports reasonable suspicion to detain." Id. at 914. Thus the
rule is that the cumulative information known to cooperating officers at the
time of the stop must be considered in determining whether reasonable
suspicion exists. Id. Eberhardt and the 9-1-1 police dispatcher are regarded
as "cooperating officers" for purposes of making this determination. Id.
16
Discussion of Court of Criminal Appeals opinions that illustrate
the amount of corroboration required when the informant's report is
inherently reliable.
The following two opinions illustrate the amount and nature of
corroboration that courts require when citizens come forward to report
suspicious activity they have observed firsthand.
• Derichsweiler v. State: Police may lawfully act on a
called-in report of suspicious but not inherently criminal activity.
In Derichsweiler, a man and his wife were waiting in the drive-
through lane of a McDonald's restaurant at night when a man drove up
next to them and grinned, staring at them for thirty seconds to a minute
before driving on. Derichsweiler, 348 S.W.3d at 909. The man circled the
restaurant and repeated the behavior as the couple waited for their food.
Id. Feeling threatened, the husband called 9-1-1. Id. at 910. As the husband
spoke to the police dispatcher, the man drove to the adjacent Wal-Mart
parking lot and appeared to engage in similar conduct, pulling alongside at
least two parked cars. Derichsweiler, 348 S.W.3d at 911. The husband
"admitted that he had witnessed no criminal conduct" or overt threat. Id.
17
The responding officer identified the vehicle and initiated an
investigative detention. Derichsweiler, 348 S.W.3d at 911. All that the officer
knew was the caller's name, the identifying characteristics and location of
the car, and that the complainant thought that the car was suspicious and
wanted the police to check it out. Id. n.6. The dispatcher did not pass along
the details that had served to raise the couple's suspicions. Id. at 911. When
the officer contacted the driver, he smelled a strong alcoholic odor and
began a DWI investigation. Id.
The Court of Criminal Appeals explained that, under these facts,
there was no issue with respect to the reliability of the eyewitness report.
Id. at 915. The report was made by persons who were identified and
therefore answerable for the details they provided based on their first-hand
perceptions. Id. at 915. Similarly, the Court saw no issue with the called-in
report as part of the information upon which the officer could rely in
establishing reasonable suspicion. Id. Although the officer was not
apprised of all the information relayed, it was part of the collective
knowledge known to the cooperating officers, which included the police
18
dispatcher. Derichsweiler, 348 S.W.3d at 915. The only issue in the case was
whether "the totality of that reliable information provided specific,
articulable facts that, combined with reasonable inferences to be derived
from those facts, would lead to the reasonable conclusion that the [suspect]
was committing, or soon would be engaged in, some type of criminal
- - - -
activity." Id. at 915-16.
The Court concluded that it did. Even though the informants did not
observe or report any particular criminal conduct, the reported behavior
was sufficiently bizarre for police to make a "brief stop to investigate, if
only by their presence to avert an inchoate offense." Id. at 916.
• Brother v. State: A motorist calls 9-1-1 to describe a
motorist's car, location, and erratic driving.
In Brother, the citizen-eyewitness called the 9-1-1 dispatcher on her
cell phone to report speeding, tailgating, and weaving across several lanes
of traffic. Brother, 166 S.W.3d at 256. At the dispatcher's request, the
eyewitness followed the suspect and activated her hazard lights to help the
officer quickly identify the vehicle. Id. at 258. The eyewitness continued to
19
provide her observations to the dispatcher until the arresting officer
stopped the car in question. Id. at 257. The officer did not personally
witness any erratic driving but testified that the facts relayed by the police
dispatcher "sounded like a possible intoxicated driver." Id.
Upholding the stop as lawful, the Court unequivocally rejected the
defense argument that an officer must personally observe activity giving
rise to reasonable suspicion.
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 interests struck in Terry and its
progeny.
Id. at 259.
The 9-1-1 call was sufficiently corroborated when Officer Eberhardt
identified the vehicle by its description, location, and license number.
Derichsweiler, 348 S.W.3d at 915; Brother, 166 S.W.3d at 258-59. The
identified caller,s information was further corroborated when Eberhardt
saw Dumas swerving within his own lane. See State v. Nelson, 228 S.W.3d
899, 904 (Tex. App.-Austin 2007, no pet.).
20
The substance of the 9-1-1 call objectively supported reasonable
suspicion to believe that criminal activity was afoot.
Because the identified caller's information was sufficiently
corroborated, the only question is whether the information that the known
citizen-informant provided, viewed under the totality of the circumstances,
"objectively supports a reasonable suspicion to believe that criminal
activity is afoot." Derichsweiler, 348 S.W.3d at 915.
The 9-1-1 caller saw the station wagon swerve in and out of traffic
lanes, travel 90 miles an hour, and nearly sideswipe him. 3 RR 20, 22. The
driver of this car was texting. This information objectively supports a
reasonable suspicion that criminal activity was afoot. Foster, 326 S.W.3d at
613 n.10 (unusual driving late at night, no observed traffic offense); Brother,
166 S.W.3d at 256 (speeding, tailgating, weaving across several lanes).
Additionally, the detaining officer had reasonable suspicion
independent of the detailed information relayed in the 9-1-1 call.
The facts of Dumas's case are even stronger than those of Brother
because Eberhardt saw Dumas swerving within his own lane, failing to use
a turn signal, and inexplicably exiting and re-entering the highway late one
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Saturday night. 3 RR 22-23. From these observations alone Eberhardt could
have rationally inferred that Dumas was driving recklessly or driving
while intoxicated. Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App.
2007).
PRAYER
For these reasons, the Travis County Attorney, on behalf of the State
of Texas, asks this Court to overrule the points of error and affirm the
judgment of conviction for driving while intoxicated- second offense.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
Assist n ravis County Attorney
r Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
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CERTIFICATE OF COMPLIANCE
Relying on Corel WordPerfect's word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document in its entirety contains 4730 words.
I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Mr. Dumas's attorney of record, Mr.
Gregory Sherwood, at gsherwood@mail.com, on or before AprilS, 2015.
Giselle
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Delane Dumas v. State
Combined Opinion