ACCEPTED
03-15-00221-CR
5928122
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/2/2015 4:44:03 PM
No. 03-15-00221-CR JEFFREY D. KYLE
CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas
7/2/2015 4:44:03 PM
JEFFREY D. KYLE
Clerk
MICHAEL GRACE,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court-at-Law Number Six,
Travis County, Texas
Trial Cause No. C-1-CR-13-211885
STATE'S BRIEF
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
GISELLE HORTON
ASSIST ANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
July 2, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................ 111
STATEMENT OF THE CASE ............................................ 1
ISSUE PRESENTED .................................................. 2
BACKGROUND ..................................................... 2
SUMMARY OF THE ARGUMENT ....................................... 8
ARGUMENT
Reply point: The trial court did not abuse its discretion
in denying suppression relief because the initial
detention was lawful ........................................ 10
1. Grace's contentions on appeal ........................... 10
2. Because the bar doorman identified himself,
his report to police is presumed reliable .................. 11
3. Under the totality of the circumstances, the detaining
officer had reasonable suspicion to initiate a brief
detention for investigatory purposes ..................... 13
3.1. Grace has ignored the collective-knowledge doctrine,
under which the police dispatcher's knowledge is
imputed to all cooperating officers .................. 14
i
3.2. Ignoring the imputed- or collective-knowledge
rule has, in turn, caused Grace to misapply both
the totality test and the standard of appellate review .. 15
3.3. Properly viewed, the record shows that the
detention was lawful .............................. 16
PRAYER ......................................................... 19
CERTIFICATE OF COMPLIANCE ....................................... 20
CERTIFICATE OF SERVICE ........................................... 21
ii
INDEX OF AUTHORITIES
Statute Page
TEX. PENAL CODE§ 37.08
(West Supp. 2014) ........................................... 13
Rule
TEX. R. APP. P. 701 ................................................ 17
Cases
Alabama v. White, 496 U.S. 325
(1990) ..................................................... 11
Brother v. State, 166 S.W.3d 255
(Tex. Crim. App. 2005) ....................................... 12
Derichsweiler v. State, 348 S.W.3d 906
(Tex. Crim. App. 2011) .............................. 12, 13, 14, 15
Hime v. State, 998 S.W.2d 893
(Tex. App.-Houston [14th Dist.] 1999, pet. ref' d) ............... 12
Howard v. State, 744 S.W.2d 640
(Tex. App.-Houston [14th Dist.] 1987, no pet.) ................. 17
Illinois v. Gates, 462 U.S. 213
(1983) ..................................................... 12
Martinez v. State, 348 S.W.3d 919
(Tex. Crim. App. 2011) ....................................... 13
Nacu v. State, 373 S.W.3d 691
(Tex. App.-San Antonio 2012, no pet.) ..................... 18, 19
Pipkin v. State, 114 S.W.3d 649
(Tex. App.-Fort Worth 2003, no pet.) ......................... 12
Reesing v. State, 140 S.W.3d 732
(Tex. App.-Austin 2004, pet. ref' d) ........................... 13
State v. Fudge, 42 S.W.3d 226
(Tex. App.-Austin 2001, no pet.) ............................. 12
State v. Garcia-Cantu, 253 S.W.3d 236
(Tex. Crim. App. 2008) ....................................... 15
iii
State v. Ross, 32 S.W.3d 853
(Tex. Crim. App. 2000) ....................................... 15
State v. Stolte, 991 S.W.2d 336
(Tex. App.-Fort Worth 1999, no pet.) ......................... 12
Taflinger v. State, 414 S.W.3d 881
(Tex. App.-Houston [1st Dist.] 2013, no pet.) .................. 12
United States v. Basey, 816 F.2d 980
(5th Cir. 1987) .............................................. 12
Ware v. State, 724 S.W.2d 38
(Tex. Crim. App. 1986) ....................................... 12
iv
STATEMENT OF THE CASE
The State charged Grace by information with operating a motor
vehicle while intoxicated (DWI), enhanced by a prior conviction. CR 18.
After the trial court held a pre-trial evidentiary hearing and denied the
suppression relief he requested, Grace pleaded no contest to the charge. CR
36-37. On February 3, 2015, the trial court sentenced Grace in accordance
with a plea agreement to one year in jail and a $4,000 fine, but suspended
imposition of this sentence and placed Grace on community supervision
(probation) for two years. CR 38. As conditions of probation, Grace was
required to serve five days in the Travis County Jail, complete a DWI
offender program, comply with an ignition-interlock program, complete
100 hours of community-service restitution, and surrender his driver's
license for one year. CR 38-41.
Grace filed a new-trial motion on March 3, 2015. CR 47-48. He gave
written notice of appeal on April 7, 2015. CR 55.
1
ISSUE PRESENTED
Did the police officer have reasonable suspicion to detain Grace
when all he knew were the readily observable descriptors of car and
driver, and the allegation that the driver was drunk?
BACKGROUND
As the bar was closing at about two o'clock in the morning, Cary
Allen, the doorman at Ego's Karaoke Bar, called 9-1-1 to report that a man
(later identified as Grace) was drunk, sitting in his car with a passenger,
and about to drive away. 2 RR 12; 4 RR State's Exhibit #1@ 0:03-2:26 [the
first 9-1-1 call]. Allen identified himself to the police dispatcher by his full
name, and related that, as the bar doorman, "we've had police before, and
they told me it's always better to catch them in the car before they leave,
rather than ... waiting until they leave the property[.]" 4 RR State's
Exhibit #1@ 1:40-1:51. The following is a transcription of the first of Allen's
two calls to 9-1-1.
0:03 9-1-1 DISPATCHER: Austin 9-1-1. Do you need police, fire, or
EMS?
2
0:06 CARY ALLEN: I need to report a drunk driver.
0:08 9-1-1 DISPATCHER: Okay. What road is he on?
0:10 CARY ALLEN: He is at, uh, the parking lot of, uh, Ego's
Karaoke Bar, 510 South Congress Avenue.
He's a guest at the bar who, uh, left the bar
intoxicated. I urged him not to drive. But he is
sitting in his Scion in the parking lot. I know
he's about to take off.
0:23 9-1-1 DISPATCHER: Okay, what color is his Scion?
0:25 CARY ALLEN: It's a blue Scion.
0:27 9-1-1 DISPATCHER: Can you see the license plate?
0:29 CARY ALLEN: Yes sir. It's B, J, N, 19-67. He's in the parking
lot now. It's a, uh, Caucasian male with a grey
beard- probably about fifty-five, sixty years
old.
0:42 9-1-1 DISPATCHER: Let me go and read back the license plate to
make sure I've got it correctly. I've got Boy,
John, Nancy, 1, 9, 6, 7?
0:49 CARY ALLEN: That is correct.
0:50 9-1-1 DISPATCHER: Is that a Texas license plate?
0:51 CARY ALLEN: Blue, uh, er, it's a Texas license plate. Yes, sir.
3
0:54 9-1-1 DISPATCHER: Okay, he's a white male fifties or sixties, with
a grey beard?
0:58 CARY ALLEN: (Unintelligible.)
1:01 9-1-1 DISPATCHER: What was that?
1:04 CARY ALLEN: I'm sorry sir, I'm the doorman at the bar. I've
got some customers that are leaving.
1:09 9-1-1 DISPATCHER: Okay, that's fine. What's your name?
1:11 CARY ALLEN: My name is Cary: C-A-R-Y. Allen: A-L-L-E-N.
1:17 9-1-1 DISPATCHER: Okay. And do you want us to talk to you in
person or no?
1:21 CARY ALLEN: I'm at the bar right now. I'm the doorman at
the bar they're at.
1:24 9-1-1 DISPATCHER: Right, so what I've done is
1:26 CARY ALLEN: So, I mean if it's necessary, I'm at the bar. I'm
sorry, what's that?
1:30 9-1-1 DISPATCHER: I've got this processed as a public
intoxication. Now once he leaves and it
changes and it becomes aD-a DWI. So, we're
headed there right now in hopes we can catch
him before he leaves.
1:40 CARY ALLEN: Okay. You know what, we've had police
before, and they told me it's always better to
4
catch them in the car before they leave, rather
than, uh, waiting until they leave the property
and then calling the cops-if that makes
sense.
1:51 9-1-1 DISPATCHER: Completely true, sir. That's why we're on our
way right now.
1:52 CARY ALLEN: Okay.
1 :53 9-1-1 DISPATCHER: Now if he does leave, I want you to call us
back and tell us what direction he went. Can
you do that?
1:57 CARY ALLEN: Yes, sir. You know I can. He's parked in there.
Like. I mean, they're-they're drunk. So
they're just sitting in their car with their lights
on.
2:05 9-1-1 DISPATCHER: Yeah. I understand. But once we get out there,
do you want us to talk to you in person or no?
It's a matter of personal preference for you.
2:12 CARY ALLEN: Uh, I mean if, if, if it's all the same I've got a
bar to close down, but if they need to talk to
me, I'm inside the bar.
2:17 9-1-1 DISPATCHER: Okay, I'll tell them that. Alright, thanks, sir.
2:19 CARY ALLEN: Alright.
2:20 9-1-1 DISPATCHER: If anything
5
2:20 CARY ALLEN: Hey, thank you very much. Be safe.
2:22 9-1-1 DISPATCHER: Oh, no problem. You, too. Bye.
2:23 CARY ALLEN: Alright. Bye.
Consistent with the remarks about the desirability of preventing
drunks from actually driving, Allen testified that he called 9-1-1 to ensure
Grace's safety. 2 RR 18.
At 2:07a.m., Austin Police Officer Larry Wright received a public-
intoxication call from the dispatcher. 2 RR 23-24. The call relayed the
doorman's name and telephone number, and described the suspect- a
white male with a grey beard, approximately 50 years old-and his car-a
blue Scion with license plate number BJN-1967. 2 RR 24-25. Wright
testified that, in his experience, intoxication-related offenses are a concern
at that time of morning and in that part of town. 2 RR 28. He was familiar
with Ego's and its parking lot from past police experience. 2 RR 37. "We've
had several calls there for various reasons. Fights or public intoxication
calls or DWI or reckless calls from that bar numerous times." 2 RR 25.
6
Wright was on his way to Ego's when Allen called 9-1-1 a second
time to update the information: the driver had left the parking lot and was
now southbound on South Congress A venue. 2 RR 25-26.
2:30 9-1-1 DISPATCHER: Austin 9-1-1. Do you need police, fire, or
EMS? Austin 9-1-1.
2:33 CARY ALLEN: I just called to report a drunk driver from, uh,
Ego's Karaoke Bar at 510 South Congress
A venue. He was sitting in the parking lot and
he just took off southbound on South
Congress Avenue.
2:45 9-1-1 DISPATCHER: What kind of vehicle was it?
2:48 CARY ALLEN: It's a blue Scion.
2:53 9-1-1 DISPATCHER: Okay. Am I speaking to Mr. Allen?
2:55 CARY ALLEN: That is correct.
2:58 9-1-1 DISPATCHER: And you said it was southbound.
3:00 CARY ALLEN: Yes sir. The dispatcher told me
to-southbound on South Congress
Avenue-the dispatcher told me to call back
and let you all know if he had left the
property.
7
3:10 9-1-1 DISPATCHER: Okay, we got that call in. The officers are
already, uh, near. And, uh, thank you for
calling back so they know where to go.
3:17 CARY ALLEN: Thank you very much.
3:18 9-1-1 DISPATCHER: Thank you.
3:20 CARY ALLEN: Alright, bye bye.
4 RR State's Exhibit #1@ 2:30-3:20 [the second 9-1-1 call].
Just as the police dispatcher updated the call with this information,
Officer Wright saw a blue Scion with that specific license plate number,
traveling southbound. 2 RR 26. Without observing any traffic violations or
erratic driving, Wright pulled the car over, got out, and approached the
passenger side. 2 RR 33. DWI enforcement officers were already on the
scene, and handled the investigation that led to Grace's arrest for
DWI-second offense. 2 RR 29.
SUMMARY OF THE ARGUMENT
Grace's divide-and-conquer approach involves a number of
analytical missteps. He first begins by relying on anonymous-tipster and
confidential-informant cases. Based on that reliance, he then dismisses
8
corroborative evidence as "readily observable" and therefore unworthy of
any consideration. Finally, he focuses on one word-"drunk" -to conclude
that the only information properly before the detaining officer was fatally
conclusory. These arguments
• rely on inapplicable case law;
• ignore the collective- or imputed-knowledge doctrine or rule, under
which the information known to the dispatcher is imputed to all
cooperating officers; and
• misapply the standard of review and the totality test by ignoring or
miscasting significant facts.
Unlike the anonymous tipster or the confidential informant, the
doorman was an identified citizen who contemporaneously reported the
criminal misconduct he saw. His report is therefore inherently credible and
reliable under binding precedent.
Furthermore, the law imputes to the detaining officer a knowledge of
all that the doorman relayed to the dispatcher. The only question, then, is
whether the information that the doorman provided- viewed through the
prism of the detaining officer's particular level of knowledge and
9
experience-objectively supported a reasonable suspicion to believe that
criminal activity was afoot.
Among other things, Grace ignores (1) the detaining officer's
experience with intoxication-related arrests at this particular time, area,
bar, and parking lot; and (2) the doorman's experience with drunks and his
previous calls to police in similar situations. But seen as the standard of
review requires, the totality of the circumstances objectively supports a
reasonable suspicion of criminal activity to justify the initial detention for
investigative purposes.
ARGUMENT
Reply point: The trial court did not abuse its discretion in
denying suppression relief because the initial detention was
lawful.
1. Grace's contentions on appeal.
Relying on an anonymous-tip and a confidential-informant case,
Grace contends that the bar doorman's unreliable, conclusory tip could not
have provided the requisite reasonable suspicion. Specifically, he
maintains that the doorman's specific description of Grace and the car he
10
was driving were not entitled to any weight because they were readily
observable. And, without those particulars, he contends, the only
information that the officer could rely on was the doorman's conclusory
allegation of intoxication, which gave no basis for testing his credibility.
2. Because the bar doorman identified himself, his report to police is
presumed reliable.
Courts have generally identified three categories of informants: the
anonymous informant, the known informant (someone from the criminal
world who has previously provided reliable tips), and the identified
citizen-informant. The United States Supreme Court has acknowledged the
relevance of these categories to an informant's reliability, and has
observed, for example, that an anonymous informant is comparatively
unreliable and his tip, therefore, will generally require independent police
corroboration. Alabama v. White, 496 U.S. 325, 329 (1990).
Grace has mistakenly relied on anonymous-tip and confidential-
informant cases when analyzing the doorman's reliability. According to
the Supreme Court, an identified citizen-informant's report is highly
11
reliable; a strong showing as to other indicia of reliability is therefore
unnecessary.
If an unquestionably honest citizen comes forward with a
report of criminal activity-which if fabricated would subject
him to criminal liability-we have found rigorous scrutiny of
the basis of his knowledge unnecessary.
Illinois v. Gates, 462 U.S. 213, 233-34 (1983).
The doorman's report is also reliable under Texas law. Texas cases
consistently hold that information is inherently credible and reliable when
the police receive it from an identified or identifiable private citizen-
eyewitness who initiates contact with the police to report another person's
suspected criminal act? Unlike a person who makes an anonymous
telephone call, the identified citizen-informant cannot lie with impunity
Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011);
Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Ware v. State, 724
S.W.2d 38, 40 (Tex. Crim. App. 1986); State v. Fudge, 42 S.W.3d 226, 232 (Tex.
App.-Austin 2001, no pet.); Taflinger v. 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.").
12
because he has put himself in a position to be held accountable for his
intervention. See TEX. PENAL CODE§ 37.08 (West Supp. 2014) (criminalizing
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 v. State,
140 S.W.3d 732, 737 (Tex. App.-Austin 2004, pet. ref' d). Indeed, the
doorman remained answerable for his report after the fact, even though he
was busy closing the bar down. 4 RR State's Exhibit #1@ 2:12.
Because the doorman's reliability is not in issue on these facts, the
only question is whether the information that he provided- viewed
through the prism of the detaining officer's particular level of knowledge
and experience-objectively supports a reasonable suspicion to believe that
criminal activity is afoot. Derichsweiler, 348 S.W.3d at 915.
3. Under the totality of the circumstances, the detaining officer had
reasonable suspicion to initiate a brief detention for investigatory
purposes.
Grace focuses on "intoxicated" or "drunk" in the dispatcher's report
to the detaining officer, and concludes that the officer relied on fatally
conclusory information that did not amount to a reasonable suspicion of
13
criminal activity. This portion of his analysis is flawed for at least three
reasons: it ignores the collective- or imputed-knowledge rule; it misapplies
the standard of review; and it misapplies the totality test.
3.1. Grace has ignored the collective-knowledge doctrine, under
which the police dispatcher's knowledge is imputed to all
cooperating officers.
Grace mistakenly focuses solely on what the detaining officer knew
from the dispatcher's report. But the detaining officer need not be
personally aware of every fact that objectively supports a reasonable
suspicion to detain. Derichsweiler, 348 S.W.3d at 914. In a case such as this
one,
[i]t matters not that the dispatcher did not pass all of these
details along to the responding officers. In assessing whether
reasonable suspicion existed, a reviewing court looks to the
totality of objective information known collectively to the
cooperating police officers, including the 911 dispatcher.
Derichsweiler, 348 S.W.3d at 915.
14
3.2. Ignoring the imputed- or collective-knowledge rule has,
in turn, caused Grace to misapply both the totality test
and the standard of appellate review.
Under the standard of review, the prevailing party is afforded the
strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008); see also State v. Ross, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000) (reviewing court gives "almost total" deference to a trial
court's implied determination of historical facts).
Moreover, Grace's mechanistic, divide-and-conquer approach,
culminating in his narrow focus on "intoxicated" or "drunk," violates the
flexible all-things-considered character of the totality test. For instance,
Grace has nothing to say about the detaining officer's training and
experience, or the time of day and location, all of which figure into the
totality analysis. Derichsweiler, 348 S.W.3d at 917.
15
3.3. Properly viewed, the record shows that the detention was
lawful.
Officer Wright knew that bars close around two o'clock in the
morning and knew from experience that intoxicated pedestrians and
drivers are a concern in that area when the bars are closing. 2 RR 28. He
was specifically familiar with Ego's from past experience, and testified that
he has been called there numerous times on reports of fights or
intoxication. 2 RR 25.
The objective signs of intoxication are matters of common
knowledge-not rocket science-for the ordinary citizen, and detecting
them requires no formal training or expertise. As a bar doorman, however,
Allen has vastly more experience dealing with intoxicated persons than the
ordinary citizen does.
Contrary to Grace's contentions, the record shows that the doorman
had experience detecting intoxication; he had not just started the job
yesterday. He told the dispatcher that he called the police before the
intoxicated patron actually left the bar's parking lot because "we've had
16
police before, and they told me it's always better to catch them in the car
before they leave[.]" 4 RR State's Exhibit #1@ 1:40. The doorman's
experience and his first-hand observations of Grace distinguish the facts of
this case from those of State v. Garcia, No. 03-14-00048-CR, 2014 Tex. App.
LEXIS 9624 (Tex. App.-Austin Aug. 28,2014, no pet.) (mem. op., not
designated for publication), upon which Grace relies.
Furthermore, because the doorman based his opinion on his first-
hand observations of Grace, he could have testified to his opinion of
intoxication at trial. TEX. R. APP. P. 701; see Howard v. State, 744 S.W.2d 640,
641 (Tex. App.-Houston [14th Dist.] 1987, no pet.). The record clearly
shows that the doorman interacted with Grace face-to-face as Grace left the
bar; he urged Grace not to drive. 4 RR State's Exhibit #1@ 0:10. The trial
court could rationally infer from this up-close interaction that the doorman
observed intoxication symptoms that prompted his concern and his
immediate calls to police. If a trier may rely on the doorman's opinion to
find intoxication beyond a reasonable doubt, then surely cooperating
17
police officers may rely on the experienced doorman's report before briefly
detaining to investigate.
This case is most like Nacu, in which a restaurant manager told a
police officer that a woman who had been in the nearby restaurant was too
intoxicated to drive, had gotten into a car in the parking lot, and was now
attempting to drive away. Nacu v. State, 373 S.W.3d 691, 695 (Tex.
App.-San Antonio 2012, no pet.). The manager pointed to Nacu's car,
which Nacu was trying to drive between metal poles too narrowly spaced
to admit a car. Id. at 693. Without stopping to first ascertain the basis of the
manager's opinion or even her name, the officer set off to detain. Id.
Nacu contended that the manager's statement, "too intoxicated to
drive," was purely conclusory. Id. at 695-96. The San Antonio Court
acknowledge that, viewed in isolation, it was. Id. at 696. But the totality of
circumstances-which included the manager's explanation that the driver
had previously been in her restaurant, was intoxicated, and was trying to
drive through poles too narrow to accommodate a car-gave the officer
reasonable suspicion based on specific, articulable facts. Id. Nacu thus
18
recognizes that people often speak in the shorthand of opinions, and not in
the form of a recitation of facts. This is especially true when they are faced
with an urgent situation, such as the imminent threat to safety that
prompted the restaurant manager' s-and here, the doorman's-reports.
As in Nacu, the facts and inferences of this case, viewed in their
totality and in the light most favorable to the ruling, supplied the trial
court with specific, articulable facts to support the determination that the
detaining officer had reasonable suspicion to detain Grace. Nacu, 373
S.W.3d at 696.
PRAYER
For these reasons, the Travis County Attorney, on behalf of the State
of Texas, asks this Court to overrule the point of error and affirm the
judgment of conviction for driving while intoxicated- second offense.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
19
Travis County Attorney
ar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
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 contains 3812 words.
20
CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Mr. Grace's attorney of record, Mr.
Sean Solis, at ssolis@utexas.edu, on or before July 6, 2015. /
Travis County Attorney
21