Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/7/2015 9:17:00 AM DEBBIE AUTREY Clerk *1 CASE NO. 06-15-00122-CR IN THE
SIXTH COURT OF APPEALS TEXARKANA, TEXAS _____________________________________________________________
DAVID SYLVESTER CHAMBERS Appellant VS.
THE STATE OF TEXAS ____________________________________________________________
ON APPEAL FROM THE 272 nd DISTRICT COURT BRAZOS COUNTY, TEXAS CAUSE NO. 13-02053-CRF-272 _____________________________________________________________
STATE’S BRIEF _____________________________________________________________
JARVIS PARSONS DISTRICT ATTORNEY BRAZOS COUNTY, TEXAS Maritza Sifuentez Assistant District Attorney State Bar No. 24082121 300 E. 26th Street, Suite 310 Bryan, Texas 77803 (979) 361-4320 (979) 361-4368 (Facsimile) msifuentez@brazoscountytx.gov *2 IDENTITY OF PARTIES AND COUNSEL APPELLANT: David Chambers
Trial Counsel: Shannon Flanigan
P.O. Box 482 Bryan, Texas 77806 Appellate Counsel: Richard Wetzel
1411 West Ave Suite 100 Austin, TX 78701 THE STATE OF TEXAS: Jarvis Parsons
District Attorney 300 E. 26th Street, Suite 310 Bryan, Texas 77803 Trial Counsel: Jennifer Hebert
James Andrew Rogers Assistant District Attorneys Appellate Counsel: Maritza Sifuentez
Assistant District Attorney TRIAL COURT: Hon. Travis Bryan
272 nd District Court Brazos County, Texas i
TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................ i
TABLE OF CONTENTS .............................................................................................. ii
INDEX OF AUTHORITIES ........................................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT .................................................. 1
STATEMENT OF THE CASE ..................................................................................... 2
STATEMENT OF FACTS ....................................................................................... 2-33
SUMMARY OF THE ARGUMENT .................................................................... 33-35
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR ONE ................ 35
The trial court committed no error when it permitted the State to
amend Appellant’s indictment after the jury was sworn in
because the State amended an enhancement paragraph-not the
language of the charged offense, and the State already provided
sufficient notice of the prior conviction used for enhancement.
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR TWO…….......47
The trial court committed no error when it denied Appellant’s
Motion to Suppress Evidence, where he alleged there was no
corroboration of the witnesses tip. The record shows that: (1) law
enforcement corroborated the witnesses observations and (2) the
witnesses provided an inherently reliable tip.
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR THREE……...60
Appellant’s judgment of conviction incorrectly reflects the degree
of offense as a second-degree felony instead of a state-jail felony;
the judgment should be reformed.
PRAYER ...................................................................................................................... 63
ii
CERTIFICATE OF SERVICE .................................................................................... 63
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 ......................... 64
iii *5 INDEX OF AUTHORITIES STATUTES
T EX . C ODE C RIM P ROC . § art. 28.10(b) ............................................33, 35, 36, 41, 42
T EX . R. A PP . P. 44.2(b) ............................................................................................. 45
T EX . P ENAL C ODE § 31.04(e)(4)(a) .................................................................... 60, 61
T EX . P ENAL C ODE §12.425(b) .................................................................................. 61
CASES
Barnes v. State , no. 14-05-00144-CR, 2006 WL 2548186 (Tex. App.—Houston
[14th Dist.] Sept. 5, 2006, pet. ref'd) (not designated for publication)
……………………………………………………………………………………………………………………………… 40, 42, 44, 45, 46
Brother v. State , 85 S.W.3d 377 (Tex. App.—Fort Worth, 2002, pet. ref’d)
……………………………………………………………………………………………………………………………………… 48, 53, 57-58
Brooks v. State , 957 S.W.2d 30 (Tex. Crim. App. 1997) ……………………………………………….
Bryant v. State , no. 14-99-01373-CR, 2002 WL 27573 (Tex. App.—Houston [14th
Dist.] Jan. 10, 2002, pet. ref'd) (not designated for publication.) ….. 41, 45, 46
Derichsweiler v. State , 348 S.W.3d 906 (Tex. Crim. App. 2011) ………… 52-53, 55-57
Ford v. State , 334 S.W.3d 230 (Tex. Crim. App. 2011) ……………………….…………...… 60, 61
King v. State , 935 S.W.2d 266 (Tex. Crim. App. 1997) ………………………………………………… 45
Martinez v. State , 261 S.W.3d 773 ( Tex. App.—Amarillo 2008, pet. ref’d.)
…………………………………………………………………………………………………………………………………………….… 57, 60
Motilla v. State , 78 S.W.3d 352 (Tex. Crim. App. 2002) ……………………………………… 45, 45
Mount v. State , 217 S.W.3d 716 (Tex. Crim. App. 2007 ………………………………………… 47, 53
Newton v. State , 301 S.W.3d 315 (Tex. App. —Waco, 2009, pet. ref’d) ………………… 47
iv
Romo v. State, no. 10-14-00036-CR, 2014 WL 6609050 (Tex. App.—Waco Nov.
20, 2014, no pet.) ……………………………………………………………………………………………………………….. 61-62
Sample v. State , 405 S.W.3d 295 (Tex. App.—Fort Worth 2013, pet. ref’d) …………
v *7 CASE NO. CASE NO. 06-15-00122-CR IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS _________________________________________________________________
DAVID SYLVESTER CHAMBERS Appellant VS.
THE STATE OF TEXAS _________________________________________________________________
ON APPEAL FROM THE 272 nd DISTRICT COURT BRAZOS COUNTY, TEXAS CAUSE NO. 13-02053-CRF-272 _________________________________________________________________
STATE’S BRIEF _________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, the State of Texas, by and through its District Attorney, and
files this brief in response to the points of error alleged by Appellant, and would
respectfully show the Court the following:
STATEMENT REGARDING ORAL ARGUMENT Appellant did not request oral argument. The State, likewise, does not
request oral argument.
STATEMENT OF THE CASE Appellant, David Silvester Chambers, was charged by indictment with the
state jail felony offense: Theft of Property $1,500-$20,000 enhanced by
punishment to a second degree felony. [1] (CR 5). On April 6, 2015, Appellant pled
“Not Guilty” to the jury for the offense of Theft of Property $1,500-$20,000. (6
RR 185). The jury found Appellant guilty of Theft of Property $1,500-$20,000 as
charged in the indictment. (CR 32; 7 RR 88). Appellant elected for the trial court
to assess punishment. (CR 17). Appellant also pled “Not True” to the
enhancement paragraphs. (CR 35; 8 RR 7). The trial court found both
enhancement paragraphs true, and assessed punishment at 15 years in the
institutional division of the Texas Department of Criminal Justice. (CR 36; 8 RR
84). Notice of Appeal was filed on June 12, 2015. (CR 51).
STATEMENT OF FACTS Pre-trial suppression hearing
Officer James Hauke (Bryan Police Department), a nineteen-year law
enforcement veteran, was assigned to the Canine (K9) Unit that supports patrol.
(6 RR 155-56, 165). On March 9, 2013 at around 12:50 a.m., Hauke responded to
a 911 dispatch indicating that witnesses were in their vehicle and following a
*9 reckless driver who was in possession of a trailer that was possibly stolen. (6 RR
156, 160-61); See State’s Pre-trial Exhibit 2: CAD notes from 911 dispatch. 911
dispatch and the CAD computer system apprised Hauke of the witnesses’
ongoing locations and that the suspect was trying to escape by driving recklessly
down streets and the highway. (6 RR 156, 157, 159, 160-61); See State’s Pre-trial
Exhibit 2: CAD notes from 911 dispatch. 911 dispatch informed officers that the
witnesses described their vehicle as the maroon Dodge Charger, and the suspect
was driving a black dually pickup with the white cargo trailer attached. (6 RR
160-61).
While the witnesses relayed information, 911 dispatch then relayed the
witnesses’ information to law enforcement using the CAD computer system and
“live” broadcast. (6 RR 157-58, 166-67). Hauke stated that he received the CAD
notes, the 911 call, and dash-cam video from his patrol vehicle. (6 RR 157-59).
The state’s exhibits were admitted. (6 RR 159). The CAD notes reflected the
information that 911 dispatch relayed to Officer Hauke. (6 RR 157).
Hauke used the information relayed from dispatch to locate the witness’s
maroon Dodge Charger on the highway. (6 RR 161-162). Officer Hauke began
pursuing the suspect around the time the suspect was leaving the city of Bryan
and entering the city of College Station. (6 RR 161). Hauke testified that his
dash-cam-video showed the witness’s maroon Charger that was following the
suspect’s black dually truck with the cargo trailer attached. (6 RR 164). Hauke
caught up with the witness’s maroon Dodge Charger, passed the Charger, and
then drove in behind the suspect with the stolen cargo trailer. (6 RR 159,161).
Appellant exited Highway 6 at the Barron Road exit in College Station. (6 RR
161, 172). Officer Hauke followed. (6 RR 161). Hauke tried to read the paper
license tag on the stolen trailer while he followed Appellant. (6 RR 167). All
Hauke could make out was “delta, one, three” (D13), so he was not able to
request that 911 dispatch determine the registered owner of the cargo trailer
before he stopped the dually truck. (6 RR 167-68). Hauke also could not see the
license plate on the dually truck. (6 RR 168).
Hauke waited for a College Station Police unit to arrive as backup before
initiating his stop on Appellant’s vehicle. (6 RR 161). Felony-stops are usually
carried out using two officers since the suspects could be armed and dangerous.
(6 RR 168-69). When Hauke made the traffic stop, Appellant decided to exit his
vehicle. (6 RR 162,173). Hauke identified Appellant, in court, as the person that
was driving the black dually truck and was pulling the stolen cargo trailer. (6 RR
161, 162). At that point, Hauke instructed Appellant to “turn and walk backwards
towards me.” (6 RR 162). Appellant also reached for his pocket, though Hauke
already asked him to put his hands on the cab, which concerned Hauk. (6 RR
173). Hauke never drew his weapon on Appellant. (6 RR 173). A College Station
officer then took Appellant and placed him in the back of a patrol car while 911
Dispatch determine who was the registered owner of the trailer. (6 RR 162-63).
The owner was Nathan Kleinman with Woodbolt Industries located in downtown
Bryan. (6 RR 163).
Officer Hauke admitted that he did not personally observe Appellant’s
reckless driving. (6 RR 174). Hauke testified that his reasonable suspicion for
stopping Appellant was based on the information regarding the offense in Bryan
and what the witnesses reported to dispatch. (6 RR 172,175). Hauke had
witnesses that were feeding 911 dispatch information. (6 RR 171-172). Dispatch
then relayed that information to the officers. (6 RR 166). Hauke listened to the
911 dispatcher: “live. I was there live when it happened…[y]es, I did not hear the
caller. I heard the dispatcher, what they were telling me.” (6 RR 166).
When Hauke heard that Appellant was driving in a crazy manner away
from witnesses who were following him, Hauke suspected that it was because
Appellant was attempting to “get away” with stolen property. (6 RR 160). Hauke
also believed that crimes occur more frequently after midnight so that suspects
can use the cover of darkness as a shield. (6 RR 160). Hauke testified that: “my
suspicion was it’s basically one o’clock in the morning. He’s [Appellant] the only
black dually and white trailer with a witness following behind him.” (6 RR 175).
Before initiating the stop, Hauke verified that there was a Charger
following behind Appellant. (6 RR 175). After the traffic stop, Hauke also spoke
to the witnesses who made the 911 call. (6 RR 163, 177). The witnesses were
waiting on stand-by at a nearby Harley Davidson parking lot. (6 RR 163, 177).
The witnesses gave Hauke several forms of identifying information: driver’s
licenses, names, and “anything [Officer Hauke] could think to ask for.” (6 RR
163-164). The witnesses also provided written statements. (6 RR 164).
On cross-examination, Hauke stated that, had the witnesses’ 911 report
been a false report, prank, or that somebody had tricked Appellant into taking a
trailer that did not belong to him, Hauke would have to investigate first in order
to make that determination. (6 RR 177).
Officer Hauke authenticated the audio of the 911 call from the reporting
witnesses, and it was admitted as State’s Pre-Trial Exhibit No. 3. (6 RR 158); see
State’s Pre-trial Exhibit No. 3: Audio of 911 Call . State’s Pre-Trial Exhibit No. 3
was played in its entirety, in open court (6 RR 164); the following is a
transcription of State’s Pre-Trial Exhibit No. 3:
911 OPERATOR: 911 what’s the address of the emergency
WITNESS 1: Uh, we’re just following somebody that’s uh that’s uh
has a stolen trailer, we believe
911 OPERATOR: that you believe has a stolen trailer?
WITNESS 1: yeah, they stole it off of uh
WITNESS 2: they are over here by East Park
WITNESS 1: they’re over here by East Park
911 OPERATOR: Okay, who’s trailer is it?
WITNESS 2: it’s called Manning Way
WITNESS 1: It’s called Manning Way
911 OPERATOR: okay, Manning Way and what’s the other street
WITNESS 1: What’s that other street?
WITNESS 2: Over here by East Park
MALE WITNESS: Over here by East Park
WITNESS 2: We went the other direction because they know we are
following them...I turned around know we are following them
WITNESS 1: We went the other direction they know we are
following us..they know we are following them.
[Time Stamp: 00:00:39] 911 OPERATOR: Okay, what’s, I need an intersection that you guys
are at?
WITNESS 2: Moss and Manning
WITNESS 1: We are at Moss and Manning
WITNESS 2: they got to come back out this way towards us
911 OPERATOR: Okay, why do yall think it was stolen?
[Time Stamp: 00:00:50] WITNESS 2: We were sitting here in the yard
WITNESS 1: We were sitting in the yard…I’m turning
around….and we were just sitting in the yard and we saw them hook
it up to the trailer
WITNESS 2: And they looked suspicious
WITNESS 1: they looked suspicious, and its 12 o’clock, almost was
one o’clock at night, and
WITNESS 2: the way they drove [Time Stamp: 00:01:06]
WITNESS 1: the way they drove, they’re driving real crazy
WITNESS 2: hitting curves
WITNESS 1: hitting curves and everything
911 OPERATOR: Okay, where are, where is it at now?
[Time Stamp: 00:01:12] WITNESS 2: They turned off of uh Manning up into East Park but
there’s only one way out and they haven’t came back out yet
WITNESS 1: They haven’t came back out yet, we’re at Moss
WITNESS 2: and Manning Way
911 OPERATOR: is East Park a mobile home park? Or what is that?
WITNESS 2: No that’s Eastside Park off MLK
WITNESS 1: that’s Eastside Park by MLK, MLK
WITNESS 2: pull over to the right
WITNESS 1: Oh there they are
WITNESS 2: they are unhooking it
911 OPERATOR: hold on real quick, hold on for me
WITNESS 2: They are trying to turn it around now
WITNESS 1: They just saw me…
WITNESS 2:…stop its okay….
WITNESS 1: they saw me.
WITNESS 2: it’s okay that they saw you
WITNESS 1: I’m gonna pull over to the side of the road
WITNESS 2: You gotta make sure you can see them
WITNESS 1: I see them..I see the trailer [Time Stamp: 00:01:56]
WITNESS 2: they’re on Manning Way
911 OPERATOR: okay, hold on for me
WITNESS 2: they turned it around, they’re leaving again
WITNESS 1: ugh oh here they come
WITNESS 2: okay, stop backing up
WITNESS 1: why?
911 OPERATOR: (speaking to someone else)
WITNESS 2: they are getting back on MLK
WITNESS 1: they’re getting back on MLK
911 OPERATOR: Now they’re on MLK?
WITNESS 1: yes
WITNESS 2: We are gonna see which way they go
WITNESS 1: We are gonna see which way they go
911 OPERATOR: What kind of vehicle is it?
WITNESS 1: It’s a Dodge dually, um a Chevrolet dually
911 OPERATOR: Is the trailer still hooked up?
WITNESS 1: Yeah trailer is still hooked up, he got it, he still gots it
WITNESS 2: They haven’t turned on MLK yet
WITNESS 1: They haven’t turned MLK, they’re still on uh Dumas
WITNESS 2: Douglass
WITNESS 1: Douglass, no- D-U-M-A-S-S
911 OPERATOR: okay, hold on for me
WITNESS 1: Dumas and MLK, they’re turning
WITNESS 2: they’re going again
WITNESS 1: they’re going again
911 OPERATOR: they are going where?
WITNESS 1: they are going, hold on. Hold on. They’re just, they’re
staying still.
911 OPERATOR: at the entrance to MLK?
WITNESS 2: they’re going left down uh MLK, they’re going back
to the highway 6, back to highway 6
WITNESS 1: turn right to see which they are going
WITNESS 2: they are going back to highway 6
911 OPERATOR: towards highway 6?
WITNESS 2: yes
WITNESS 1: yes, to highway 6, MLK to highway 6 right now
911 OPERATOR: okay, are they over the bridge or what?
WITNESS 1: yep they are about to hit the bridge, they’re at the
stoplight, they’re at the stoplight
911 OPERATOR: they are at the bridge?
WITNESS 1: yeah they’re at the bridge right now
WITNESS 2: we are trying to keep
WITNESS 1: we are trying to see if they’re going straight or turn
911 OPERATOR: okay, what kind of vehicle did you say? What
color dually?
WITNESS 1: it’s a black dually- they are sitting at the red light right
now, oh they are turning right, they’re turning right
[Time Stamp: 00:03:35]
WITNESS 1: They’re turning right. They are going towards the old
DPS office. I’m trying to get back up to them right now . I’m in the
red Dodge charger, so if they see me uh speeding-
911 OPERATOR: okay, are they are on the feeder, or are they on
the highway?
WITNESS 1: they are on the feeder road right now
WITNESS 2: coming to the exit
WITNESS 1: We are trying to see if they are exiting off
911 OPERATOR: Now they are on the feeder road in front of
the DPS office, old DPS office?
WITNESS 1: uh yeah.
WITNESS 2: No, they got on the highway
WITNESS 1: No, they got on the highway
911 OPERATOR: On the freeway? On the freeway?
WITNESS 1: They’re on the highway. They’re on Highway 6 in
front of the old DPS office, um, they’re headed towards, um
College Station right now. They’ve got the white boxed-in trailer
with black Chevrolet dually truck [Time Stamp:
00:04:30]
WITNESS 2: it’s four door
WITNESS 1: it looks four door, but we really can’t make sure
911 OPERATOR: okay, can you give me a LP on that truck, or yall
not close enough? [Time Stamp:
00:04:38]
WITNESS 1: uh, we have the….whats the
WITNESS 2: the trailer vin number was like 813666H- I believe
WITNESS 1: yeah
911 OPERATOR: that’s the VIN number?
WITNESS 2: no, that’s the license plate number on the trailer
WITNESS 1: on the trailer [Time Stamp: 00:04:51]
911 OPERATOR: okay, where is the vehicle at now?
WITNESS 1: okay, we are going underneath um, William Joel
Bryan, the bridge on Highway 6
WITNESS 2: okay, we’re off the…they just did a u-turn off
Manning Way back over the bridge
WITNESS 1: they tried to loose us
911 OPERATOR: okay, well where
WITNESS 1: yeah they are, they are going faster now
911 OPERATOR: stay on the phone with me. Are they heading into
College Station?
WITNESS 1: Yes. Heading into College Station right now. Um, I
don’t know if they are going to exit Briarcrest or not. I’m about
to see. We’re about to hit Briarcrest.
WITNESS 2: they are staying on the bypass
WITNESS 1: they are staying on the bypass
911 OPERATOR: We got a stolen trailer heading to another
town . Okay, are yall still on the highway?
WITNESS 1: yeah, we’re still on the highway
911 OPERATOR: what intersection yall coming up to?
WITNESS 1: uh, we are going underneath the bridge of uh, no that’s
not University..Briarcrest, Briarcrest
911 OPERATOR: passing Briacrest?
WITNESS 1: yeah, yeah passing Briarcrest right now, going
underneath the bridge…and like the trailer lights are flickering on
and off so you’ll be able to see it. Alright, we are passing Lowe’s
[Time Stamp 00:06:03] *20 911 OPERATOR: passing Lowe’s right now?
WITNESS 1: We’re passing Lowe’s we are still on the highway
[Time Stamp 6:15] WITNESS 2: they did a u-turn on….
WITNESS 1: We’re passing the Dodge dealership on highway 6 and
911 OPERATOR: okay, yall still on 6?
WITNESS 1: yep, still on 6. Passing Dodge, passing the Furniture
Row….I don’t see no cops here
WITNESS 2: they hit a curb
WITNESS 1: they hit a curb and everything driving crazy
[Time Stamp: 00:06:54] 911 OPERATOR: okay, just let me know when they exit, if they do
WITNESS 1: okay.
911 OPERATOR: what are yall gonna be in?
WITNESS 1: uh, I’m in a maroon Dodge Charger, 07 Dodge
Charger, tinted windows. Alright still going straight it did not exit,
did not exit University, going underneath University bridge on
highway 6 [Time Stamp: 7:08]
911 OPERATOR: hey is it a closed-in trailer or a, what kind of
trailer is it?
WITNESS 1: closed-in trailer, box trailer
WITNESS 2: box trailer
911 OPERATOR: a box trailer
WITNESS 1: all white
911 OPERATOR: all white
WITNESS 1: all white, boxed-in trailer
911 OPERATOR: okay, alright just,
WITNESS 1: they’re still going
911 OPERATOR: Yeah, where yall at now, sir?
WITNESS 1: Um, we’re passing Scott and White
911 OPERATOR: Passing Scott and White?
WITNESS 1: Yeah.
WITNESS 2: coming up on Harvey
WITNESS 1: coming up on Harvey [Time Stamp: 00:07:59]
911 OPERATOR: Tell me, let me know if they exit Harvey
WITNESS 1: alright….looks like they are staying on….they are
starting to slow down they see us
911 OPERATOR: I don’t want yall to put yall’s selves in harm’s
way, alright?
WITNESS 1: nah, I’m not, I’m I’m trying not to
911 OPERATOR: I don’t want you to stay up right behind them,
they slam the breaks and yall have to hit the back of them
WITNESS 1: yeah I’m staying way away from them now . I think
they see us. Alright we are going over the bridge of uh Harvey Road
911 OPERATOR: They’re still on 6 past Harvey
WITNESS 1: we’re coming up on Southwest Parkway exit, and
we don’t know if they’re gonna exit yet
WITNESS 2: They’re swerving a little bit
WITNESS 1: they’re swerving. Man I gotta pee.
911 OPERATOR: we’re trying to get the whole force out there right
now. [Time Stamp: 00:09:00]
WITNESS 1: alright, alright we are going underneath the uh
Southwest Parkway bridge right now, bout to. They’re slowing
down.
WITNESS 2: They know they’re being followed now
WITNESS 1: They know they’re being followed
WITNESS 2: I hope we’re not trippin’. We’re passing underneath uh
Southwest Parkway bridge
WITNESS 1: you know its stolen, cause they’re driving crazy
[Time Stamp: 00:09:24] 911 OPERATOR: I think we had the owner call in, and call and
tell us it was stolen also [Time Stamp: 00:09:26]
WITNESS 1: Really? Huh. That’s crazy
911 OPERATOR: just keep me updated. Yall are still on
Highway 6?
WITNESS 1: yeah still on Highway 6, we’re passing Central Park,
the Beachy Park
911 OPERATOR: let me know if they take Emerald Forest
WITNESS 1: alright
WITNESS 2: They already called and said it was stolen?
WITNESS 1: Yeah, they already called and said it was stolen.
WITNESS 2: we were watching them
WITNESS 1: We were watching, we watched them hook up to
the trailer and everything
911 OPERATOR: okay, can I get your name sir?
[Time Stamp:00:10:13] WITNESS 1: Mario. No they’re not going on Emerald Parkway,
they’re keep going straight. They’re heading towards Navasota. Uh,
Mario Thompson. [Time Stamp: 00:10:15]
911 OPERATOR: Hold on real quick, hold on.
WITNESS 1: Man, I gotta pee like a racehorse.
911 OPERATOR: Okay, Mario, what’s your last name?
WITNESS 1: Thompson. T-H-O-M-P-S-O-N
911 OPERATOR: And, a call back number?
WITNESS 1: 979-676-3969. They did not exit the Texas and
Deacon exit they keep going straight [Time Stamp: 00:10:48]
911 OPERATOR: okay
WITNESS 1: they’re at Rock Prairie exit
911 OPERATOR: Are they taking?
WITNESS 1: no, uh, no. They’re not taking Rock Prairie. They’re
not taking Rock Prairie. Uh, here comes a cop, I believe. He’s
coming up pretty fast
911 OPERATOR: can you put your flashers on and let him know
[Time Stamp: 00:11:08] *24 WITNESS 2: they got him
WITNESS 1: ught oh. Canine unit. Canine unit.
911 OPERATOR: put your flashers on
WITNESS 1: nah, he came up he’s behind the trailer right now
WITNESS 2: he uh
WITNESS 1: it flew up on him
WITNESS 2: he goes like
911 OPERATOR: okay
WITNESS 1: he’s in the Expedition
WITNESS 2: still on Highway 6
911 OPERATOR: okay. yeah that’s gonna be uh, gonna be, it’s a K-
9 unit, but
WITNESS 1: want my flasher’s on? Do I need to keep my
flashers on?
911 OPERATOR: yeah, you can go ahead and back off a little bit
from the officer
WITNESS 1: okay
911 OPERATOR: the officers on him right now
WITNESS 1: okay, I was just wondering if they need anything
from us, I don’t want them to see us though
911 OPERATOR: Well, I’m going to uh,
WITNESS 1: they’re coming up on Barron Road
911 OPERATOR: okay, is it okay if the officer contacts you?
WITNESS 1: yeah.
911 OPERATOR: okay, I’ll let him know that he can contact you,
alright?
WITNESS 1: We live right there where it was stolen at, right
there at that, across the street
911 OPERATOR: Do you still have your flashers on?
WITNESS 1: yes. I have my flashers on .
WITNESS 2: they’re exiting, they’re turning
WITNESS 1: oh they’re turning, they’re turning
WITNESS 2: They’re pulling them over now, they turned on their
lights
WITNESS 1: Now, they’re pulling them over
911 OPERATOR: yeah, they got them and pulled them over. Okay,
hold on real quick for me
WITNESS 1: okay
WITNESS 2: we’re right here on…
911 OPERATOR: hey (inaudible) do they need to pull over on the
shoulder?
911 OPERATOR: is it okay if you guys can pull over to the side of
the road on the shoulder, a little bit behind the K-9 unit, not directly
behind them but about 100 feet or so
WITNESS 1: uh, I’m over here at this uh the cleaner’s I passed
the street up where they were
911 OPERATOR: you passed them up?
[Time Stamp: 00:12:52] WITNESS 1: yeah, I’m uh on the feeder road
911 OPERATOR: okay, are you in front of them then?
WITNESS 1: no, I’m uh, they went down uh what is it Dartmouth?
Not Dartmouth, but uh
911 OPERATOR: is there anyway you can get back over there?
[Time Stamp: 00:13:03] WITNESS 2: yeah, we can go back around
WITNESS 1: yeah, I can turn around but, alright
911 OPERATOR: okay, they’re
WITNESS 1: I’m on the feeder road
911 OPERATOR: they’re at Barron and Highway 6
WITNESS 2: They’re right behind, next to the Dexter Insurance
Building
WITNESS 1: Dexter Insurance Building
WITNESS 2: And, American Mo- Bank or whatever it is
WITNESS 1: The insurance building
911 OPERATOR: Are they right there before the
WITNESS 1: yeah, they’re right there by the insurance building
911 OPERATOR: Chevron, is the Chevron right there?
WITNESS 2: No, there’s like a
WITNESS 1: No, no there’s, that’s uh
WITNESS 2: American Momentum Bank
WITNESS 1: where this bank is
911 OPERATOR: So, they’re on Graham Road?
WITNESS 1: Graham Road, Graham Road yeah. I passed up
Graham Road already
911 OPERATOR: okay, they’re on Graham, Arby’s, okay
[Time Stamp: 00:13:51] WITNESS 1: I got it
911 OPERATOR: okay, is there a way you can uh pull back around?
WITNESS 1: yes
WITNESS 2: We’re just gonna go under the bridge thing and come
back
WITNESS 1: Alright, Ima come back around, okay?
911 OPERATOR: okay, uh um how did you take the bridge, the turn
around?
WITNESS 1: yeah Ima go back to the turnaround
911 OPERATOR: okay. That’s fine yeah just go and um
WITNESS 1: I don’t want them to see me
911 OPERATOR: you don’t have to get out of the car
WITNESS 1: Alright.
911 OPERATOR: Well, here hold on real quick, hold on for me
WITNESS 1: okay, I already turned
WITNESS 2: I don’t recog- I don’t know the truck
911 OPERATOR: yes, they are turning back around, they passed up
the officers and they are turning back around. Okay, we are gonna
ask the officer, okay, if he needs you to stand by alright? Alright?
WITNESS 1: Alright.
911 OPERATOR: So, just kinda hang on for me real quick
WITNESS 1: Alright.
911 OPERATOR: if you need to, pull off like to the shoulder or
something
WITNESS 2: and I seen the way he was moving and he looked and
he looked suspicious, you know what I’m saying? [Time
Stamp:15:24]
911 OPERATOR: yeah, yeah he stole it
WITNESS 2: I was leaning on the end of the car and I noticed there
was somebody over there messing with all that, it sure was late for
somebody to be messing with that stuff. That was just odd, you
know what I’m saying?
911 OPERATOR: hold on for me
WITNESS 1: Alright, I’m over here at the Harley Davidson shop
they want me to loop back around them
911 OPERATOR: You’re by the Harley Davidson?
WITNESS 1: yeah, Harley Davidson shop
911 OPERATOR: Okay. Are you pulled into the parking lot?
WITNESS 1: uh yeah, I’m pulling into the parking lot right now
911 OPERATOR: okay
WITNESS 1: Is he out too? I guess they didn’t want me to see him
911 OPERATOR: hold on, that might be an okay place to just stay
there and the officer can just meet you over there
WITNESS 1: Alright, that’s cool
911 OPERATOR: Let me just check real quick
WITNESS 1: okay
911 OPERATOR: He’s in the Harley Davidson parking lot
WITNESS 1: I’m not…nah, the cops already know I’m over
here…(indistinguishable)...motion sensor…(indistinguishable)
911 OPERATOR: Yeah just sit tight for me right quick, alright?
WITNESS 1: Alright
911 OPERATOR: The officers are trying to get everything figured
out.
WITNESS 1: there goes another one…man I wish I was on patrol,
oh there goes the sheriff
WITNESS 2: they’re ready to get his ass
WITNESS 1: man, sheriff coming, College Station, what’s this one?
WITNESS 2: I’m the one that noticed it, I was the one watching
them
WITNESS 1: I know
WITNESS 2: I’m just leaning on the hood of the car talking, and
then I’m like, you see that?
WITNESS 1: You were like, “Mario get in the car.” I can’t believe
someone gonna steal a trailer at 12 o’clock at night, one o’clock
911 OPERATOR : is that right there where yall live?
WITNESS 1: yeah
WITNESS 2: I live there
WITNESS 1: yeah she lives there
911 OPERATOR: yall know who the owner is of that trailer, or
no?
WITNESS 1: uh, we think it’s like the weight lifting
[Time Stamp: 00:18:12] WITNESS 2: the power lifting
WITNESS 1: Like power lifting and exercising, and stuff like that
WITNESS 2: they’re there every day exercising
WITNESS 1: So, they know that something is inside that trailer
911 OPERATOR: yeah, bunch of probably weights and stuff that
cost a lot of money
WITNESS 1: yeah, yes
WITNESS 1: Ima go trade my car in now
WITNESS 2: yeah
911 OPERATOR: just wait right there, I can get off the phone with
them. Okay, sir?
WITNESS 1: yes
911 OPERATOR: Ima go ahead and get off the phone with you,
but if you guys can just sit tight in that parking lot, we are gonna
have the officer come over to you guys, alright ?
WITNESS 1: Alright
911 OPERATOR: And, if anything changes I’ll give you a call
WITNESS 1: Alright
911 OPERATOR: Alright?
WITNESS 1: Alright
911 OPERATOR: Alright, bye.
WITNESS 1: Bye.
See (9 RR State’s Pre-Trial Exhibit No. 3: Audio of 911 call from 00:00:00
to 000:19:17).
State’s evidence during guilt-innocence phase
Officer James Hauke ( the detaining officer), testified that he was a
certified peace officer for over 19 years with thousands of hours of training. (6
RR 189-90). On March 9, 2013 around 12:45 a.m., 911 dispatch reported a “call-
in-progress.” (6 RR 190). A call-in-progress provides law enforcement with what
is currently occurring. (6 RR 190). The call was for a reckless driver who was
traveling through neighborhoods suspiciously. (6 RR 191).
Witnesses reported that they were following the driver they believed had
stolen a trailer. (6 RR 191). Dispatch provided the witnesses’ descriptions of the
suspects vehicles. (6 RR 191). The suspect vehicle was described as a “black
dually pulling a white cargo trailer.” (6 RR 191). The reporting witnesses’
vehicle was a maroon Dodge Charger. (6 RR 191). Hauke located both vehicles
as they were traveling on the highway in South College Station. (6 RR 192). He
“observed a maroon Charger following a pickup with a cargo trailer attached to
it.” (6 RR 192). Hauke specifically identified Appellant’s black truck as the
witnesses reported it. (6 RR 192). After Hauke identified the truck with the cargo
trailer, Appellant exited the highway, and Hauke followed behind him. (3 RR
192). Hauke then initiated a traffic stop at Graham Road and Barron Road. (6 RR
192).
Hauke’s dash-cam recorded the pursuit of the stolen trailer and Appellant’s
traffic stop. (6 RR 193). Hauke explained that State’s exhibit 2 was a screenshot
from his dash-cam video showing the hood of his patrol unit, the black dually
truck, and the cargo trailer he suspected had been stolen. (6 RR 194-95). The
video also showed Appellant getting out of the black dually. (6 RR 195). Hauke
also explained that the footage showed him following behind the white cargo
trailer. (6 RR 197).
Once Appellant was detained, Hauke confirmed that Appellant was not the
owner of the cargo trailer, and Appellant did not have the keys to open the cargo
trailer. (6 RR 163, 197-98). Hauke also spoke to the two witnesses that reported
Appellant to 911 dispatch, and both of them provided their names: Carla Pillow
and Mario Thompson. (6 RR 198-99).
On cross-examination, Hauke agreed that he should make sure he has the
best evidence before stopping people and accusing them of a crime, and it was
also important for Hauke to verify information he received before he stops
someone for committing a crime. (6 RR 199-201). Hauke agreed that he did not
make any contact with whom he believed had stolen the trailer. (6 RR 201).
Hauke admitted that all of his information was based on information exchanged
between witness-to- dispatch- to-officer. (6 RR 201). Hauke only spoke directly
to the witnesses, later. (6 RR 202).
Hauke agreed that he didn’t’ know very many details, and he just had the
identification of who somebody Hauke did not know that was accusing
somebody else of stealing a trailer. (6 RR 202). However, Hauke stated that he
did verify a white trailer was being pulled by a black dually. (6 RR 202). Hauke
agreed that he could not see the license plate numbers, so he started a felony stop
before Hauke had all the facts, and that getting that license plate is pretty
important to an investigation of the stolen trailer. (6 RR 204).
Hauke testified that dispatch informed him that somebody hooked up a
trailer and drove away with it. (6 RR 205). Hauke knew the reporting persons
were witnesses from across the street. (6 RR 206). Hauke also admitted that “the
stop happened before [Hauke] [was] able to verify some critical information.” (6
RR 206). However, Hauke testified that he could only initiate an investigation
into the truth of the reporting witnesses’ report after first making a traffic stop. (6
RR 296).
Further, Hauke stated that dispatchers were “continuously” getting
information “straight from the witnesses who were following the suspects,” and
then 911 dispatch relayed that information to Hauke who “continuously” received
updates. (6 RR 207). Hauke believed it was important to stop Appellant because
of the “need to stop the theft in progress, and we don’t want to jeopardize our
witnesses. He’s [Appellant] already tried to elude, based on the call, one time
from witnesses. So we don’t want anything reckless happening.” (6 RR 207). The
witnesses who were continuously on the phone with 911 dispatch stuck around to
talk to officers. (6 RR 207). Hauke stated that he could not make out the license
plates number to find out who the owner was, so he had no other way to
investigate whether the cargo trailer was stolen unless he stopped Appellant, first.
(6 RR 208).
Mario Thompson testified that he was the witness who chased Appellant
when it appeared that he had stolen someone’s trailer and reported Appellant to
911. (7 RR 18, 39). He stated that on March 9, 2013, he was at a barbecue at his
friend, Carla Pillow’s, house. (7 RR 8-9). Mario had been friends with Carla for
over five years. (7 RR 8). Carla’s barbecue lasted “about all night,” and Mario
did not leave until around one in the morning. (7 RR 9). Carla Pillow lived in
Brazos County off of Martin Luther King and Tabor Road. (7 RR 9).
That night, they were standing in Carla’s driveway. (7 RR 12). Around
12:30 at night, Mario saw something that caught his attention. (7 RR 12). Across
the railroad tracks, he could see someone standing at a building that “exercising
people use” after work. (7 RR 12). Mario would visit Carla at night, and “there’s
usually not nobody over there at that time.” (7 RR 12). The area is usually pretty
dead. (7 RR 12). There was always a white box trailer at the building. (7 RR 13).
Mario believed the trailer was full of workout equipment. (7 RR 13).
That night, Mario saw a black Chevy dually suspiciously next to the trailer.
(7 RR 13-14). He could see “lights come on and lights come off,” but then he did
not see anyone until cars passed by and illuminated the suspect who was in a
hiding spot. (7 RR 14). When cars would pass by, and their headlights hit the
suspect, the suspect would hide by “just kind of putting their self-up against the
trailer between the truck and the trailer.” (7 RR 15). But, when the headlights
went away, the suspect would continue “going on with their business.” (7 RR
15). Mario had never seen anyone over at that building during that hour when he
would visit Carla Pillow. (7 RR 15).
It took the suspect about 15-20 minutes to hook up the trailer, and Mario
suspected it took so long because the person was “trying to get the lock off.” (7
RR 15). Mario saw that the person was messing with the trailer hitch. (7 RR 16).
The suspect was there alone. (7 RR 16). After the suspect hooked up the trailer
to his truck, he “took off pretty fast” and “jumped the curb” when taking off. (7
RR 18). Mario decided to follow him because “nobody is not supposed to be
stealing a trailer.” (7 RR 18).
While following the suspect, Mario lost him for a few seconds but then
caught back up. (7 RR 20). Mario saw that the suspect stopped and was
“fiddling” with the trailer; Mario thought the suspect probably jack-knifed it. (7
RR 21). Mario called 911 and that is when the suspect took off again. (7 RR 21).
The suspect only got out of his truck once, and Mario saw him get back into his
truck. (7 RR 22). The suspect traveled down a dead-end street, and then turned
around to go to Martin Luther King Street, and then headed to Highway 6. (7 RR
22). Mario continued to follow behind the suspect but kept a good distance
because he did not want the suspect to see him. (7 RR 23). Mario could tell that
the suspect knew he was being followed because the suspect took off fast onto
the highway and was driving in between cars. (7 RR 23). One of the reasons
Mario believed the suspect had stolen the trailer was because he was “driving
crazy.” (7 RR 31).
Mario could clearly see the white trailer and big dually pickup truck. (7 RR
35-36). Mario agreed that he could not see the interior of the truck, so there could
have possibly been another person inside. (7 RR 36). The suspect also drove the
wrong direction down a one-way alley with signs stating, “Do Not Enter.” (7 RR
35).
Mario agreed it was possible that the person who got back into the vehicle
was a different person. (7 RR 43). Mario was not able to determine the suspect’s
identity. (7 RR 43). However, Mario testified that he only lost sight of the suspect
for a brief period and “got right back to him” “pretty quick.” (7 RR 44).
Mario agreed that although he could not say for certain that the exact
person that hooked up the trailer was the same person he watched get out of the
vehicle on Manning Way street, “there was nobody that came outside of a house
or out of another vehicle that was around.” (7 RR 46-47).
Duane Monteilh testified that he was an employee of Woodbolt
Distributors that was doing business as Nutrabolt. (7 RR 49). He was the
purchasing agent that bought the white cargo trailer for Woodbolt Distributors. (7
RR 49-50). The trailer cost $4,651.03. (7 RR 52). He bought the trailer on
November 27, 2012. (7 RR 53). They stored the trailer on the back alleyway
behind the company warehouse. (7 RR 53). The trailer was used to store workout
equipment, and it held $10,500.00 worth of workout equipment when it was
stolen. (7 RR 53-54). Monteilh verified that the stolen trailer was the same trailer
that belonged to his company and held their workout equipment. (7 RR 55).
Monteilh also stated that the company’s workouts took place in the evenings
around five and five-thirty. (7 RR 55).
The trailer was secured by “a lock in the ball, a lock in the pin that comes
back, a lock around the wheel, and then there are locks on the doors. One on the
side door and two on the back door.” (7 RR 56). It would not be possible for
someone to just hook up the trailer and drive off real quick. (7 RR 56). To steal
the trailer, it would take the person “some time.” (7 RR 56). Further, if someone
were at the company warehouse at 1:00 a.m., that would be suspicious. (7 RR
56).
Only two people had keys to use the trailer, and if an employee were trying
to use the trailer, that person would have to have permission and the keys from
either Monteilh or another employee named Colton Leonard. (7 RR 56-57).
Monteilh did not know Appellant. (7 RR 57). Appellant was in possession of the
company’s trailer without consent. (7 RR 58).
Nathan Kleiman testified that he was an employee of Woodbolt
Distribution on March 9, 2013 and was the one contacted about the trailer being
stolen. (7 RR 61). Kleiman testified that a few employees had permission to use
the company’s trailer. (7 RR 62). Appellant did have consent to use the company
trailer. (7 RR 62). Kleiman did not even know Appellant. (7 RR 62).
SUMMARY OF THE STATE’S ARGUMENT No. 1
In his first point of error, Appellant alleges the trial court committed error
when it allowed the State to amend the punishment enhancement paragraph of his
indictment after the jury was sworn in and over his objection. Here, the State
gave the defendant sufficient notice of the conviction used to enhance his
punishment range. Appellant improperly relies on the limitations imposed by
Tex. Code Crim. Proc. art. §28.10(b) which prohibits the State from amending
indictments after the jury has been sworn in. However, Article §28.10(b) was not
applicable. The State was therefore entitled to amend the enhancement paragraph
regardless of the jury being sworn in and over Appellant’s objection. Thus, the
trial committed no error and Appellant’s first point of error is meritless.
No. 2
In his second point of error, Appellant complains that the trial court erred
when it denied his Motion to Suppress. Specifically he alleges that the detaining
officer failed to corroborate the witnesses who reported Appellant’s ongoing
criminal activity, and the lack of corroboration resulted in insufficient reasonable
suspicion to stop Appellant. Appellant complains that the trial court erred when it
found that the detaining officer had sufficient reasonable suspicion.
However, the detaining officer did gather corroborating information before
initiating the traffic stop. Officer Hauke observed the described witness and
suspect vehicles traveling on the highway in the direction that the witnesses
reported, and he also observed the suspect with the stolen property that the
witnesses described.
Nevertheless assuming, arguendo , Hauke’s corroboration was slight,
Hauke’s observations were still sufficient to satisfy reasonable suspicion because
the witnesses tip was “inherently reliable.” Prior to the traffic stop, the witnesses
gave dispatch their identifying information and the witnesses’ only connection to
the offense is that of a concerned citizen reporting suspected criminal activity.
The eye-witnesses provided thorough details, spoke to the 911 operator for a
lengthy period of time, and provided continuous updates as they followed
Appellant who was “driving crazy” down streets and the highway. As a result,
the witnesses’ information was considered inherently reliable.
Lastly, the witnesses provided 911 with extensive information to
substantiate reasonable suspicion, and that information is included in the totality
of the circumstances to justify Appellant’s traffic stop. Because a 911 dispatch
operator is considered a “cooperating officer,” any information 911 dispatch
acquired from the witnesses is included in the totality of the circumstances to
justify reasonable suspicion. As a result, the trial court did not err when it denied
Appellant’s motion to suppress evidence. Thus, Appellant’s second point of error
is without merit.
No. 3
In his final point of error, Appellant states that his judgment of conviction
incorrectly reflects an enhanced conviction for a second-degree felony.
Appellant’s punishment range was properly enhanced, and he was appropriately
sentenced within the applicable range of punishment. However, the degree of his
offense was not enhanced. Therefore, Appellant’s judgment should be reformed
to show that the degree of his offense was a state-jail felony instead of a second-
degree felony.
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 1
The trial court committed no error when it permitted the State
to amend Appellant’s indictment after the jury was sworn in
because the State amended an enhancement paragraph-not the
language of the charged offense, and the State already provided
sufficient notice of the prior conviction used for enhancement.
In his first point of error, Appellant alleges that the trial court erred when it
allowed the State to amend the enhancement paragraph of the indictment after the
jury was sworn in. (Appellant’s brief, p. 9). Appellant argues that the trial court
violated Tex. Code Crim. Proc. art. 28.10(b) whereby the State is prohibited from
amending an indictment after the jury was sworn in, over the defendant’s
objection. First, the State amended an enhancement paragraph, which does not
trigger Article 28.10(b). Therefore, Appellant’s reliance on Article 28.10(b) is
misplaced. Enhancement paragraphs can be amended on the day of trial in spite
of the jury being sworn in and over the defendant’s objection. To prove the trial
court erred, Appellant was required to show that he was misled by the
amendment; so the trial court did not err. Second, when the court initially
addressed the State’s amendment, the jury had not been sworn in yet, and
Appellant’s trial counsel stated that they had no objection; therefore, he failed to
preserve error.
Finally, the variance in the indictment was not fatal. Thus, even if the State
did not amend the enhancement paragraph, the indictment would have been valid
notwithstanding the variance in the conviction date. Assuming, arguendo , that
the trial court erred by authorizing the State’s amendment, such error was
harmless. In conclusion, Appellant’s first point of error is meritless.
Relevant facts- pretrial objection
Appellant was indicted in the instant cause no. 13-02053-CRF-272 for
theft of property $1,500-$20,000. The trial court swore the jury in around 4:04
p.m. on the day of trial. (6 RR 183-184). However, before the jury was sworn in,
the State informed the court and the defense that they were going to amend the
enhancement paragraph to cure an error in one of the prior conviction dates for
use during the punishment phase of trial. (6 RR 121-22). The amendment would
change the prior conviction date from August 4 to August 14. (6 RR 121-22). On
the record, Appellant’s trial counsel stated that he had no objection to the State’s
amendment:
THE COURT: Is this one we’re going to read prior convictions at
the guilt/innocence or wait till punishment?
MR. ROGERS: Wait till punishment. I actually talked to Mr.
Flanigan about this. I’m going to amend one of the priors. It
reads from the 4th day of August, I believe, and it should read
on the 14 th day. Dropped the one. I don’t believe Shannon has
any objection to that.
MR. FLANIGAN : We don’t have objection to that, your
Honor . That’s going to be a punishment issue anyway. May have to
reset it for several days.
THE COURT: Not reading the punishment until we get to
punishment?
MR. ROGERS: Correct.
THE COURT: The enhancements.
MR. FLANIGAN: I want to make sure we don’t say anything
about that. I’ll be jumping up and screaming at that point.
(6 RR 121-22). (emphasis added).
Later, after the jury was sworn in but before the punishment phase began,
the State attempted to proceed on the amendment that the parties had previously
agreed to. (6 RR 211-12). At that point, Appellant’s trial counsel changed his
position and objected to the State’s amendment. (6 RR 211-14). Appellant
erroneously believed that the State was procedurally barred from amending the
enhancement paragraph once a jury had been sworn in:
MR. FLANIGAN: Judge, we didn’t have an objection to the
amending of the enhancement paragraph to correct a clerical
error . Just want it on the record it’s being done now after the
jury has been sworn though.
THE COURT: What’s being done, Mr. Prosecutor?
MR. ROGERS: All right, Judge, I have amended. I have
struck the number four in the context this is the 4th day of August
1978 and amended with the 14th day of August 1978.
THE COURT: That’s an enhancement paragraph number
one or two?
MR. ROGERS: That’s in paragraph number one of the
enhancement.
THE COURT: All right. Any objection?
MR. FLANIGAN: Your Honor, at this point because the jury had
already been sworn -- I’m sorry, I assumed that we were going
to do this before the jury was sworn. I have to object to it at this
point. I know, though, that the enhancement paragraphs will not
come into play until punishment. We’ve asked for your Honor to
hear punishment at a later time.
THE COURT: It was brought to my attention before the jury
was sworn this needed to be done. You indicated you had no
objection.
MR. FLANIGAN: That’s correct. My concern is that now
that the jury has been sworn I don’t know that an indictment
can be amended. I have my concerns about that, that’s why I’m
raising that objection.
MR. ROGERS: Sorry to talk over you. Indictment as to
enhancement paragraph is merely notice to proceeding. At that point
you can do it by Brooks’ notice. [2] That’s not even in the indictment.
And we can still go forward on that.
THE COURT: Could you do that after – his big problem is the
jury has already been sworn.
MR. ROGERS: I believe that it’s if the defense was put on notice,
which they certainly have, as to what charges we’re bringing to use
on the enhancement, the only thing we changed is the conviction
date.
THE COURT: And when was the first time you discussed this
with counsel?
MR. ROGERS: I believe it was this morning.
MR. FLANIGAN: This morning.
MR. ROGERS: Prior to jury selection.
MR. FLANIGAN: That’s correct.
MR. ROGERS: Indicated had no objection to that.
MR. FLANIGAN: Certainly Mr. Rogers has done -- I’m
not complaining about any undue surprise or anything like that.
I don’t have a problem with that. My question is, I thought we
were actually going to do the amendment before – *46 THE COURT: He tried to do it, as I recall, at three o’clock, but
your client was not here. He was 12 minutes late.
MR. FLANIGAN: Right.
THE COURT: So I told him we had to wait until your client got
there.
MR. FLANIGAN: Jury already been sworn at that point, I think.
MS. HEBERT: They had not.
MR. FLANIGAN: They had not, okay.
THE COURT: No, they were not sworn.
MR. FLANIGAN: I thought they were sworn before we left for
lunch.
THE COURT: So it was due to your client’s absence we could
not do it in advance of the swearing of the jury. So I’m going to
overrule your objection.
MR. FLANIGAN: Thank you.
(6 RR 211-14). (emphasis added).
The enhancement paragraph was properly amended though it was done after
the jury was sworn in and over Appellant’s objection.
Despite Appellant’s complaint, the State is not barred from amending an
enhancement paragraph of an indictment on the sole basis that a jury was already
sworn in and the defendant objected to the amendment. See Barnes v. State , no.
14-05-00144-CR, 2006 WL 2548186, at *3-4 (Tex. App.—Houston [14th Dist.]
Sept. 5, 2006, pet. ref’d) (not designated for publication). If the State seeks to
correct a prior conviction date in an indictment’s enhancement paragraph ,
Article 28.10(b) does not apply. Id. at *4 (“we find that Article 28.10 [3] does not
apply to the alteration of the conviction date in the enhancement paragraph.”)
Therefore, Appellant’s complaint is baseless.
In order for Appellant to successfully complain of an amendment to his
enhancement paragraph, Appellant must prove that the amendment created
prejudice. See Bryant v. State , 14-99-01373-CR, 2002 WL 27573, at *3 (Tex.
App.—Houston [14th Dist.] Jan. 10, 2002, pet. ref’d) (not designated for
publication.) Specifically, Appellant must prove that the amendment created
undue surprise as a result of the mistake in his enhancement paragraph, and that
Appellant could not discern which prior conviction the State intended to use
against him. Id. Here, Appellant’s trial counsel conceded that Appellant was not
surprised. (6 RR 211-214).
Discussion-Appellant agreed to the amendment before the jury was sworn;
Appellant suffered no harm
Appellant complains that: “because [Appellant] objected to the State’s
motion to amend the indictment on the day of trial, it was error for the trial court
to grant the amendment.” (Appellant’s brief, p. 9). However, prior to the jury
*48 being sworn in, Appellant’s trial counsel stated that he had no objection to the
amendment:
MR. ROGERS: Wait till punishment. I actually talked to Mr.
Flanigan about this. I’m going to amend one of the priors. It
reads from the 4th day of August, I believe, and it should read
on the 14 th day. Dropped the one. I don’t believe Shannon has
any objection to that.
MR. FLANIGAN : We don’t have objection to that, your
Honor . That’s going to be a punishment issue anyway. May have to
reset it for several days.
(6 RR 121-22). (emphasis added).
Appellant’s trial counsel only changed his objection at the punishment phase of
trial because he erroneously believed that, once the jury was sworn in, the State
was procedurally barred from amending the indictment’s enhancement paragraph
[4] :
MR. FLANIGAN: Your Honor, at this point because the
jury had already been sworn -- I’m sorry, I assumed that we
were going to do this before the jury was sworn. I have to object
to it at this point. I know, though, that the enhancement
paragraphs will not come into play until punishment. We’ve
asked for your Honor to hear punishment at a later time.
THE COURT: It was brought to my attention before
the jury was sworn this needed to be done. You indicated you
had no objection. *49 MR. FLANIGAN: That’s correct. My concern is that now
that the jury has been sworn I don’t know that an indictment
can be amended. I have my concerns about that, that’s why I’m
raising that objection.
(6 RR 212-13). (emphasis added).
Appellant’s trial counsel conceded, however, that Appellant was not prejudiced
by surprise:
THE COURT: And when was the first time you discussed
this with counsel?
MR. ROGERS: I believe it was this morning.
MR. FLANIGAN: This morning.
MR. ROGERS: Prior to jury selection.
MR. FLANIGAN: That’s correct.
MR. ROGERS: Indicated had no objection to that.
MR. FLANIGAN: Certainly Mr. Rogers has done -- I’m
not complaining about any undue surprise or anything like that.
I don’t have a problem with that. My question is, I thought we
were actually going to do the amendment before –
(6 RR 211-214). (emphasis added).
Consequently, Appellant cannot demonstrate that the trial court erred by
allowing the State to amend his enhancement paragraph. First, Appellant did not
preserve error: he failed to object to the amendment when he had the opportunity
to do so. Sample v. State , 405 S.W.3d 295, 303 (Tex. App.—Fort Worth 2013,
pet. ref’d.) (“[a]n appellant fails to preserve error by failing to object when he had
the opportunity….”). Instead, Appellant specifically stated on the record that he
had no objection to the amendment. (6 RR 121-22).
Second, Appellant’s trial counsel conceded that they had no complaint
about being unduly surprised. (6 RR 212-214). Appellant’s admission proved that
the State’s amendment did not create prejudice, so there was no error when the
trial court authorized the amendment. (6 RR 212-14). Barnes v. State , 2006 WL
2548186, at *4 (amendments to enhancement paragraphs are only improper
when “the discrepancy between the alleged date and the actual date of the prior
conviction operated to deprive appellant of notice of the specific conviction the
State intended to use for punishment enhancement.”) Because Appellant (1) did
not object to the amendment the first time he had the opportunity to do so, and
(2) Appellant did not show that the amendment prejudiced him to his detriment,
he failed to demonstrate that the amendment was improper or that the trial court
erred. Thus, his first point of error is without merit.
Harmless Error-the variance in Appellant’s date of conviction was not fatal
Assuming, arguendo , that the trial court erred by permitting the State to
amend the enhancement paragraph, Appellant must also show that a substantial
right was affected in order for the appellate court to remand his case to the trial
court for a new punishment hearing. T EX . R. A PP . P. 44.2(b) [5] . In order for a
substantial right to be affected, the error must have a substantial and injurious
effect of influence on the jury’s verdict. See King v. State , 935 S.W.2d 266, 271
(Tex. Crim. App. 1997). Finally, in considering whether the error had a
substantial and injurious effect or influenced the jury’s verdict, the reviewing
court should consider “the character of the alleged error and how it might be
considered in connection with other evidence in the case.” Motilla v. State , 78
S.W.3d 352, 357 (Tex. Crim. App. 2002).
Where an indictment’s enhancement paragraph contains an incorrect
conviction date, and the defendant is afforded other, correct details of the prior
conviction such as: the correct court, cause number, county, year, and offense, no
harm results. Barnes v. State , 2006 WL 2548186, at *4. “The only purpose of an
enhancement paragraph is to provide the accused with notice that the State will
attempt to use a specific conviction for enhancement of punishment.” Bryant v.
State , 2002 WL 27573, at *3.
As a result, a variance in the enhancement paragraph is not fatal “so long
as appellant was not prevented from identifying the conviction and preparing a
defense thereto.” Id. Thus, a minor clerical error in an enhancement paragraph
will not render the indictment invalid. Id. (“The object of the doctrine of variance
*52 between allegations of an indictment is to avoid surprise, and for such variance to
be material it must be such as to mislead the party to his prejudice.”)
Accordingly, where the State proves up the correct court, cause number,
county, year, and offense, the indictment will not be considered defective because
the correct details provide the defendant with adequate notice of his prior
conviction. See Id .; Barnes v. State , 2006 WL 2548186, at *4.
Like in Barnes and Bryant , there was no harm. The indictment (CR 5)
supplied Appellant with several additional facts that provided Appellant with
sufficient notice of the prior convictions the State intended to use against him.
Appellant’s indictment contained the correct court, cause number, offense,
county, and year of the prior convictions. Id. The State also entered the
judgments and convictions to prove up those facts. (8 RR 10; See State’s exhibits
No. 25).
Thus, pursuant to Motilla and Solomon , even if this Court finds that the
trial court erred by allowing the State to amend the enhancement paragraph, this
Court should find that the error had no impact, and as a result, there was no harm.
The record is clear that, in spite of the variance in the conviction date, Appellant
still received adequate notice from the other facts in his indictment. Therefore,
even if the enhancement paragraph was not amended, the indictment would have
been upheld as valid. Appellant’s first point of error is without merit and should
be overruled.
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 2
The trial court committed no error when it denied Appellant’s
Motion to Suppress Evidence, where he alleged there was no
corroboration of the witnesses tip. The record shows that: (1)
law enforcement corroborated the witnesses observations and
(2) the witnesses provided an inherently reliable tip.
Appellant complains that the detaining officer lacked reasonable suspicion
to conduct a traffic stop because he failed to corroborate the reporting witnesses’
tip. However, the detaining officer did corroborate the witnesses’ report: the
detaining officer observed Appellant in the black dually truck, with the stolen
cargo trailer, and at the location that the witnesses described. Additionally, the
witness’s information was inherently reliable thereby warranting the officer’s
belief that the traffic stop was justified.
Standard of Review
A trial court’s ruling on a motion to suppress is reviewed under an abuse-
of-discretion standard. Mount v. State , 217 S.W.3d 716, 724 (Tex. Crim. App.
2007). As long as the trial court’s ruling is within the “zone of reasonable
disagreement,” the ruling will not be overturned. See Newton v. State , 301
S.W.3d 315, 317 (Tex. App. —Waco, 2009, pet. ref’d). Appellate courts give
almost total deference to both (1) the trial court’s resolution of historical fact; and
(2) mixed questions of law and fact that turn on the weight or credibility of the
evidence. The application of law to undisputed facts is reviewed de novo . See
Brother v. State , 85 S.W.3d 377, 381 (Tex. App.—Fort Worth 2002, pet. ref’d).
Under a de novo review, the evidence is viewed in the light most favorable to the
trial court’s ruling, and the reviewing court may not disturb supported findings of
fact absent an abuse of discretion. Id.
Findings of Fact and Conclusions of Law
The trial court entered the following Findings of Facts and Conclusions of
Law after a hearing on Appellant’s Motion to Suppress Evidence held April 6,
2015:
1. On April 6, 2015, the Defendant filed his Motion to Suppress
Evidence. (CR 22). He complained that the stop of the defendant’s
vehicle was unlawful under both the Fourth Amendment and Tex.
Const. art. I, §9 and prayed that all evidence obtained as a result of
the stop be suppressed. (CR 23). The defendant did not analyze,
argue, or provide authority to establish that his protection under Tex.
Const. art. I, §9 exceeds or differs from the protection provided to
him by the Fourth Amendment, however.
2. On April 6, 2015 a hearing was held on the Defendant’s
Motion to Suppress Evidence. (6 RR 155-183). The defense argued
that:
Your Honor, Officer Hauke was, no question, doing the best he could, but the fact is he stopped the person too early. He stopped the person before he was able to run the [vehicle and trailer license] tags. If he were able to run the tags, maybe he would have had a little bit more articulable facts to add to his suspicion that would have made this reasonable….
You know, obviously stops can be made on basis of reasonable suspicion, not necessarily probable cause. But that reasonable suspicion has to be articulable, and it’s not. Even though he [Officer Hauke] has a suspicion of what kind of crime may have been committed by my client, he didn’t have any easily verifiable information before he made that stop. He could have run that tag. He could have followed the vehicle for a longer period of time.
(6 RR 178-179).
3. Admitted by the State during the hearing without objection
were the following exhibits: State’s Pretrial Exhibit 1: in car video
from Officer’s Hauke’s patrol vehicle showing the stop of the
defendant’s vehicle and trailer; State’s Pretrial Exhibit 2: Computer-
aided dispatch “CAD” notes from 911 Dispatch concerning the stop;
State’s Pretrial Exhibit 3: audio of the 911 call from the reporting
persons. (6 RR 157-159). State’s Pretrial Exhibits 1 and 3 were
played in court. (6 RR 164).
4. State’s Pretrial Exhibit 2 (“CAD” notes) indicated the
following pertinent information was relayed by the reporting persons
to 911 Dispatch, which was then relayed to Officer Hauke (6 RR
157):
12:49:31am RP BELIEVES THESE PPL STOLE A TRAILER
12:49:42 THEIR DRIVING IS CRAZY, RP FOLLOWING
12:50:33 BLK DUALLY WITH TRAIILER [sic] ATTACHED TO BACK 12:54:00 RP IN MAROON DODGE CHARGER 12:58:04 RP HAS FLASHER ON 12:58:11 RIGHT BEHIND THEM 12:58:22 RP SAYS K9 RIGHT BEHIND 12:58:32 WHITE BOX TRAILOR [sic] 12:59:11 BARRON ROD[sic] EXIT. EXITING 01:06:02 RP IS GOING TO WAIT AT THE HARLEY DAVIDSON PARKING TLOT *56 5. Officer James Hauke (Bryan Police Department) testified
during the hearing that he was assigned to the Canine (K9) Unit that
supports patrol. (6 RR 156).
6. Officer Hauke stated that on March 9, 2013 at 12:40 a.m., 911
Dispatch broadcast a call of a reckless vehicle with a possible stolen
trailer behind it. (6 RR 156, 160). The location in Bryan was in the
area of Martin Luther King Street and the side streets of Dumas,
Moss and Manning Way. (6 RR 159).
7. 911 Dispatch later advised that the reporting persons relayed
that they were driving a maroon Dodge Charger and were following
the suspect vehicle with the stolen trailer; the suspect vehicle was
described as a black dually pickup with a trailer attached to the back.
(6 RR 160-161). That information, and all additional information
provided by the reporting persons, was relayed to Hauke through
911 Dispatch. (6 RR 166).
8. The reporting persons told 911 Dispatch that the suspect
vehicle was traveling on Highway 6 while leaving Bryan and
entering the city limits of College Station. (6 RR 161).
9. Officer Hauke entered Highway 6 southbound, passed the
maroon Charger and pulled in behind the suspect vehicle. (6 RR
161). The Court finds that Officer Hauke corroborated the
information provided by the reporting persons to 911 Dispatch. (6
RR 175).
10. Officer Hauke attempted to read the paper license tag for the
trailer. (6 RR 167). All he could make out was “D13.” Because he
was not able to determine the entire license tag for the trailer,
Officer Hauke was not able to request that 911 Dispatch determine
who the registered owner was before he stopped the suspect vehicle.
Officer Hauke also could not see the license plate for the suspect
vehicle. (6 RR 168).
11. The suspect vehicle exited Highway 6 at the Barron Road exit
in College Station. (6 RR 161, 172). Officer Hauke and the maroon
Charger followed. Officer Hauke waited for a College Station Police
unit to arrive as backup before initiating his stop of the suspect
vehicle. (6 RR 161).
12. Officer Hauke stated that he did not personally witness any
reckless driving from the suspect vehicle. (6 RR 175).
13. The suspect vehicle turned on to Graham Road, and the
defendant exited the suspect vehicle. (6 RR 162). Officer Hauke told
the defendant to put his hands on the cab of the truck and then told
the defendant to walk backwards toward Officer Hauke. Officer
Hauke did not draw his weapon. (6 RR 173). A College Station
officer then took the defendant and placed him in the back of a
patrol car. (6 RR 162).
14. Officer Hauke requested that 911 Dispatch determine who the
registered owner of the trailer was; the owner was Nathan Kleinman
with Woodbolt Industries located in downtown Bryan. (6 RR 163).
15. The Court finds that the testimony of Officer James Hauke is
credible and reliable.
16. The persons, who reported the theft of trailer, went to the
Harley Davidson parking lot and waited to be interviewed. (6 RR
163). Officer Hauke went to that location, indentified them and
obtained written statements from them. (6 RR 163-164).
17. The Court finds that the reporting persons placed themselves
in a position to be held accountable for their report of a stolen trailer.
Consequently, the Court finds that the information provided by the
reporting persons is credible and reliable.
18. The defendant did not testify.
19. The Court finds that the following credible and reliable
information, as detailed above, provided specific, articulable facts
that, combined with rational inferences from those facts, would lead
Officer Hauke reasonably to conclude that the defendant detained
was currently engaged in or had been engaged in criminal activity,
namely:
On March 9, 2013 at 12:40 a.m., reporting persons witnessed
the suspect vehicle “driving crazy” and believed that the person
driving the suspect vehicle had stolen the trailer attached.
The reporting persons described the suspect vehicle towing
the stolen trailer as a black dually pickup with a trailer attached to
the back.
The reporting persons identified themselves as driving a
maroon Dodge Charger. They followed the suspect vehicle and
provided its ongoing location to 911 Dispatch.
Officer Hauke corroborated the reporting persons’
information before stopping the suspect vehicle.
CONCLUSIONS OF LAW 1. The Fourth Amendment of the United States Constitution states:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
U.S. C ONST . amend. IV.
2. As explained in Derichsweiler v. State , 348 S.W.3d 906 (Tex. Crim. App.
2011):
Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full-blown custodial arrest must
be justified by a reasonable suspicion. A police officer has
reasonable suspicion to detain if he has specific, articulable facts
that, combined with rational inferences from those facts, would lead
him reasonably to conclude that the person detained is, has been, or
soon will be engaged in criminal activity. This standard is an
objective one that disregards the actual subjective intent of the
arresting officer and looks, instead, to whether there was an
objectively justifiable basis for the detention. It also looks to the
totality of the circumstances; those circumstances may all seem
innocent enough in isolation, but if they combine to reasonably
suggest the imminence of criminal conduct, an investigative
detention is justified. “[T]he relevant inquiry is not whether
particular conduct is innocent or criminal, but the degree of
suspicion that attaches to particular non-criminal acts.” Moreover,
the detaining officer need not be personally aware of every fact that
objectively supports a reasonable suspicion to detain; rather, “the
cumulative information known to the cooperating officers at the time
of the stop is to be considered in determining whether reasonable
suspicion exists.” A 911 police dispatcher is ordinarily regarded as a
“cooperating officer” for purposes of making this determination.
Finally, information provided to police from a citizen-informant who
identifies himself and may be held to account for the accuracy and
veracity of his report may be regarded as reliable. In such a scenario,
the only question is whether the information that the known citizen-
informant provides, 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 v. State , 348 S.W.3d at 914-915 (footnotes omitted).
3. Based on the totality of the circumstances, the stop of defendant’s vehicle
was a temporary investigative detention that was reasonable under the
Fourth Amendment. See Derichsweiler v. State , 348 S.W.3d at 915-917
(citizens report of strange, non-criminal behavior by defendant gave rise to
a reasonable suspicion that he was about to engage in criminal activity);
Brother v. State , 166 S.W.3d 255, 259 (Tex. Crim. App. 2005)(officers,
who are apprised of detailed facts from citizen-eyewitnesses, are not
required to observe suspects and wait until additional suspicious acts are
committed); Mount v. State , 217 S.W.3d 716, 727-729 (Tex. App.—
Houston [14 th Dist.] 2007, no pet.)(officer had reasonable suspicion for
investigatory detention of defendant who was driving vehicle similar to
that described in radio dispatch as possibly stolen).
4. A defendant claiming relief under both the federal and state constitutions
must “analyze, argue or provide authority to establish that his protection
under the Texas Constitution exceeds or differs from that provided to him
by the Federal Constitution.” Arnold v. State , 873 S.W.2d 27, 33 (Tex.
Crim. App. 1993). Because the defendant in this case did not analyze,
argue, or provide authority to establish that his protection under Tex.
Const. art. I, §9 exceeds or differs from the protection provided to him by
the Fourth Amendment, his state constitutional argument should not be
addressed. See Olivarez v. State , 171 S.W.3d 283, 288 fn. 2 (Tex. App.—
Houston [14th Dist.] 2005, no pet.)(court reviewed alleged violation under
Fourth Amendment but refused to address alleged violation under Tex.
Const. art. I, §9).
ORDER
IT IS THE ORDER OF THE COURT that the Defendant’s Motion
to Suppress Evidence is DENIED . (6 RR 183).
( See 9/23/15 Supp. CR, pages 1-7.)
(1) Applicable law and discussion: The detaining officer did corroborate the
witnesses tip.
Appellant complains that his traffic stop was not justified because the
officer failed to gather factual corroboration of a concerned citizen’s 911 call
reporting Appellant’s criminal behavior. (Appellant’s brief, p. 15-16.) He alleges
that Officer Hauke “did nothing to corroborate that report before stopping
[Appellant].” (Appellant’s brief, p. 16). “The corroboration only occurred
following the unlawful stop.” (Appellant’s brief, p. 16).
However, the record reflects that Officer Hauke did in fact corroborate the
witnesses’ tip before initiating the traffic stop. Hauke testified that he knew
which direction to travel in order to locate the suspect because the witnesses were
“feeding” dispatch information, and dispatch was updating law enforcement with
information from the reporting witnesses. (6 RR 160-61, 166, 172, 175). Using
the witnesses’ vehicle description from dispatch, Hauke spotted the witness’s
Maroon Dodge Charger and the suspect’s black dually pickup on Highway 6. (6
RR 160-161). Hauke began his pursuit when the witnesses reported that the
suspect was leaving the city of Bryan and entering the city of College Station. (6
RR 161). When Officer Hauke caught up to the suspect, Hauke saw that the
suspect was already traveling “deep” in College Station. (6 RR 161, 172). Hauke
also observed the witness’s Maroon charger following behind the suspect’s black
dually truck with the described stolen cargo trailer, attached. (6 RR 160-61, 164,
175).
Officer Hauke’s corroboration was analogous to the corroboration by the
officer in Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). In
Derichsweiler , the Court of Criminal Appeals approved corroboration in a similar
context. Id. at 912. The Court of Criminals Appeals stated that, “Officer Carraby
was able to identify the [appellant’s] vehicle from the specific description
provided to him by the [witnesses] at the location they reported, thereby
corroborating the tip he had received.” Id. Because Officer Hauke similarly
corroborated the reporting witnesses tip in the instant case, Appellant’s complaint
that Officer Hauke “did nothing to corroborate that report before stopping
[Appellant]” (Appellant’s brief, p. 16) is baseless. Appellant’s first point of error
should be overruled.
(2) The witness’s tip was sufficiently reliable to justify the traffic stop.
Law enforcement’s traffic stop is lawful so long as the stop is justified by
reasonable suspicion. Id. at 914 (whether or not a traffic stop was supported by
sufficient reasonable suspicion depends on whether the “totality of the
circumstances” amounted to “an objectively justifiable basis for the detention.”)
The reasonable suspicion of a traffic stop is determined by the collective sum of
all the cooperating officers’ knowledge because “circumstances may all seem
innocent enough in isolation, but if they combine to reasonably suggest the
imminence of criminal conduct, an investigative detention is justified.” Id. This
includes any facts known by a 911 dispatch operator. See Id.
In Derichsweiler , the court stated that:
[T]he detaining officer need not be personally aware of every fact
that objectively supports a reasonable suspicion to detain; rather, the
cumulative information known to the cooperating officers at the time
of the stop is to be considered in determining whether reasonable
suspicion exists. A 911 police dispatcher is ordinarily regarded as a
‘cooperating officer’ for purposes of making this determination.
Id. at 914-15.
The court also clarified that even when the dispatch operator does not pass on all
of the witness’s information; those facts are still part of the justification for the
traffic stop:
It matters not that the dispatcher did not pass all of these details
along to the responding officers. In assessing reasonable suspicion,
vel non , a reviewing court looks to the totality of objective
information known collectively to the cooperating police officers,
including the 911 dispatcher. The issue in this case boils down,
therefore, simply to 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 appellant was committing, or soon
would be engaged in, some type of criminal activity.
Id. at 915-16.
Some tips are considered inherently reliable and therefore justify a
warrantless detention. See Martinez v. State , 261 S.W.3d 773, 776 (Tex. App.—
Amarillo 2008, pet. ref’d). A tip is inherently reliable when the witness provides
their personal identifying information and is willing to be held accountable for
his tip, and whose only contact with the police results from his witnessing a
criminal act. Id. If the tip qualifies as inherently reliable, that information
warrants law enforcement’s belief that a temporary detention is justified. Id.
In Derichsweiler , the court ultimately held that:
There is no issue in this case with respect to reliability of the
information supplied by the citizen-informants -the Holdens. As
the trial court found, they identified themselves to dispatch and
remained answerable for their report after the fact. That report was
based upon their own first-hand perceptions, many of which they
continuously and contemporaneously narrated to the police via the
911 dispatcher. Nor do we hesitate to include what the Holdens
[reporting persons] reported as part of the objective information that
[the detaining officer] was entitled to rely upon in making the
investigative stop. Even if [the detaining officer was not
personally aware of the detailed information the [reporting
persons] had reported to substantiate their perception that the
appellant’s car was suspicion, the 911 dispatcher was .
Derichsweiler , 348 S.W.3d at 915. (emphasis added).
A tip that is inherently reliable requires less corroboration. Brother v. State , 85
S.W.3d 377, 381 (Tex. App.—Fort Worth 2002), aff’d, 166 S.W.3d 255 (Tex.
Crim. App. 2005). In Brother , the court of appeals stated:
Where the reliability of the information is increased, less
corroboration is necessary . A detailed description of the
wrongdoing , along with a statement that the event was observed
firsthand , entitles an informant’s tip to greater weight . A tip also
deserves great weight if the person puts herself in a position to be
held accountable for her intervention . Furthermore, a person who
is not connected with law enforcement or is not a paid informant
is considered inherently trustworthy when she advises the police
that she suspects criminal activity has occurred or is occurring .
Appellant points out that [Officer] Williams did not observe him weaving, speeding, or driving erratically and asserts that
[Officer] [Officer] Williams did not know any facts as a result of
Spencer’s 911 call that would have distinguished appellant from any
other ordinary driver and thereby justified the stop. Appellant further
contends that the 911 dispatcher did not give [Officer] Williams any
information that would indicate that Spencer’s information was
reliable.
Even though [Officer] Williams did not personally observe appellant speeding or driving in an erratic manner, [Officer]
Williams did have sufficient information to warrant the investigative
detention. Spencer specifically explained to the 911 dispatcher why
she believed appellant might be driving while intoxicated. She also
described appellant’s car and gave the dispatcher his driver’s license
plate number. Based on this information, the dispatcher contacted
[Officer] Williams. The three stayed in constant contact until
[Officer] Williams pulled appellant over, and the dispatcher updated
[Officer] Williams with the information Spencer provided as the call
progressed. [Officer] Williams also corroborated Spencer’s
information by verifying appellant’s driver’s license plate number
before initiating the stop. Viewing this evidence in the light most
favorable to the trial court’s ruling, we hold that the trial court
properly applied the law in concluding, based on the totality of the
circumstances, that the stop of appellant’s vehicle was valid
Brother , 85 S.W.3d at 381-82.
In Appellant’s case, the witness’s tip justified Officer Hauke’s detention.
The eye-witnesses continuously updated the 911 dispatcher for nineteen-minutes
as they followed the suspect who was “driving crazy” down the streets and the
highway. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call ); (6
RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes .) The witness gave
specific details describing the suspect’s direction of travel, and landmarks and
buildings the suspect was driving past. (6 RR 158; See 9 RR State’s Pre-Trial
Exhibit 3: Audio of 911 call ); (6 RR 157; See 9 RR State’s Pre-Trial Exhibit 2:
CAD Notes .)
The eye-witness gave dispatch his identifying information including his
cell phone and full name. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio
of 911 call ); (6 RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes .) He
also provided specific descriptions of his maroon Dodge Charger, the suspect’s
black Chevrolet dually, and the stolen white cargo trailer with the license plate
number. (6 RR 158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call ); (6
RR 157; See 9 RR State’s Pre-Trial Exhibit 2: CAD Notes .)
When the 911 dispatcher requested the witnesses to turn on the flashers on
their vehicle to signal the approaching officers, and the witness abided by the
dispatchers request to provide updating information and stay at the scene. (6 RR
158; See 9 RR State’s Pre-Trial Exhibit 3: Audio of 911 call ); (6 RR 157; See 9
RR State’s Pre-Trial Exhibit 2: CAD Notes .) The witness waited around after the
stop so that officers could speak with them about the offense. (6 RR 163, 177).
The eye-witnesses tip was inherently reliable because the “witness
provided their personal identifying information and [was] willing to be held
accountable for his tip, and whose only contact with the police results from his
witnessing a criminal act.” Martinez v. State , 261 S.W.3d at 775.
Thus, Appellant’s second point of error is without merit and should be
overruled.
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR NO. 3
Appellant’s judgment of conviction incorrectly reflects the
degree of offense as a second-degree felony instead of a state-jail
felony; the judgment should be reformed.
Appellant states that he was convicted of the state-jail felony offense: theft
$1,500-$20,000, but his Judgment of Conviction mistakenly reflects that his
offense was enhanced to a second-degree felony. (Appellant’s brief, p. 17-20; CR
35) [6] . Appellant does not dispute the propriety of the enhanced punishment range-
he only complains of the clerical error in the judgment. (Appellant’s brief, p. 17-
20). The State agrees. The State properly enhanced Appellant’s punishment range
to the level of a second-degree felony, but the degree of Appellant’s underlying
offense remained a state-jail felony. (CR 5); Tex. Penal Code § 31.04(e)(4)(a);
See Ford v. State , 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011)(holding that
the habitual offender statute Tex. Penal Code §12.42 increases the range of
*67 punishment applicable to the primary offense; it does not increase the severity
level or grade of the primary offense.
Appellant was indicted for the state-jail felony offense of theft $1,500-
$20,000. Tex. Penal Code §31.04(e)(4)(a); (CR 5). Pursuant to the Habitual
Offender statute for state-jail felonies, Appellant’s prior felony convictions
qualified him for the heightened punishment range upon conviction. Tex. Penal
Code §12.425(b); See State’s Exhibits 25, 26, 28; (9 RR 62-68, 74-77, 87-92);
(CR 15-16). The State gave Appellant proper notice of its intent to enhance
Appellant’s punishment to the range for second-degree felonies. (CR 15). Tex.
Penal Code §12.425(b) authorized the State’s punishment enhancement:
If it is shown on the trial of a state jail felony…that the defendant
has previously been finally convicted of two felonies other than a
state jail felony… and the second previous felony conviction is for
an offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be punished
for a felony of the second degree.
T EX . P ENAL C ODE . §12.425(b)
Accordingly, the trial court properly sentenced Appellant to 15 years under
the enhanced second-degree felony range of punishment. (CR 35). However, the
character of his offense did not change to a second-degree, as mistakenly
reflected in the Judgment of Conviction. In alignment with the Court of Criminal
Appeals decision in Ford v. State , supra , this Court addressed the same issue in
Romo v. State , no. 10-14-00036-CR, 2014 WL 6609050, at *1 (Tex. App.—
Waco Nov. 20, 2014, no pet.). This Court in Romo explained that an
enhancement allegation, “merely enhances the punishment range of the offense to
that of a second-degree felony without changing the felony degree of the offense
itself.” Id. Thus, even though Appellant’s punishment range was enhanced to that
for a second-degree felony, the degree of his offense for theft $1,500-$20,000
never changed from a state-jail felony. As a result, the Judgment of Conviction
indicating that Appellant’s offense was a second-degree felony is incorrect and
should be modified. (CR 35); See Id . Therefore, this court should reform
Appellant’s judgment of conviction to show that his offense was a state-jail
felony.
This Court has the authority to modify Appellant’s judgment in order to
reflect the proper offense degree. See Id. (enhancement allegations only change
the range of punishment, but do not change the degree of the offense; therefore
the reviewing court can modify the judgment to reflect the appropriate offense
degree and then affirm the modified judgment.) The record reflects that Appellant
was punished within the proper, applicable punishment range based on his crime
and criminal history, yet he was convicted of a state-jail felony. See T EX . P ENAL
C ODE 31.03(e)(4)(A); (CR 35). Therefore, this Court should modify Appellant’s
Judgment of Conviction to show that the degree of his offense was a state-jail
felony, rather than a second-degree felony.
PRAYER
Wherefore, premises considered, the State of Texas respectfully prays that
the order of the trial court be in all things affirmed.
Respectfully submitted, JARVIS PARSONS DISTRICT ATTORNEY BRAZOS COUNTY, TEXAS Respectfully submitted, /s/ Maritza Sifuentez
Maritza Sifuentez Assistant District Attorney Brazos County, Texas 300 East 26th Street, Suite 310 Bryan, Texas 77803 (979) 361-4320 misfuentez@brazoscountytx.gov State Bar No. 24082124 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing
State’s Brief was served electronically to Rick Wetzel, attorney for Appellant, at
wetzel_law@1411west.com on this the 4 th day of December, 2015.
/s/ Maritza Sifuentez Maritza Sifuentez *70 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
I do hereby certify that the foregoing document has a word count of 14,703
based on the word count program in Word 2010.
/s/ Maritza Sifuentez Maritza Sifuentez State Bar No. 24082124 msifuentez@brazoscountytx.gov
[1] Appellant’s state jail felony was enhanced to a second degree felony by two prior felony convictions: (1) Cause No. 35042, in the 212 th District Court of Galveston County, Texas for the felony offense of Burglary of Habitation on August 4, 1978; and (2) Cause No. 807868, in the 228 th District Court of Harris County, Texas for the felony offense of Unlawful Possession of a Firearm by a Felon on August 25, 1999. (CR 5).
[2] Brooks v. State , 957 S.W.2d 30, 33 (Tex. Crim. App. 1997) (holding that: “a defendant is entitled to notice of prior convictions to be used for enhancement. But alleging an enhancement in the indictment is not the only reasonable method of conveying such notice…convictions used as enhancements must be pled in some form, but they need not be pled in the indictment.”)
[3] Tex. Code Crim. Proc. § art. 28.10(b) states: A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object. T EX . C ODE C RIM . P ROC . § art. 28.10 (b) states
[4] See Barnes v. State , 2006 WL 2548186, at *3-4 (Tex. Code Crim. Proc.§ art. 28.10(b) does not apply to the enhancement paragraphs within an indictment, so it serves as no bar that a jury was already sworn in and the defendant objected to the amendment.)
[5] Tex. R. App. P. 44.2(b) states in full: “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”
[6] Specifically, the judgment contains the following erroneous notation, “Degree of Offense: State Jail Felony Enhanced to 2nd Degree Felony.” (CR 35).