Karr v. State

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR18-1028

Before Sudderth, C.J.; Kerr and Walker, JJ.

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice.

2

On appeal from his conviction and seven-year sentence for methamphetamine possession, see Tex. Health & Safety Code Ann. § 481.115(c), Troy Edward Karr challenges the trial court's denial of his motion to suppress, claiming that the officer who stopped him did not have reasonable suspicion to do so under the United States Constitution, the Texas Constitution, or both. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Because we disagree, we affirm the trial court's judgment.

Brief Background

The State indicted Karr for possession of methamphetamine after a Parker County Sheriff's Office deputy found it during a traffic stop. Although Karr filed a motion to suppress the methamphetamine, claiming that the stop violated the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution, the trial court denied the motion. Karr and the State agreed to findings of fact and conclusions of law, which the trial court signed. Karr then pleaded nolo contendere to the possession offense, and the trial judge sentenced him to seven years' confinement, in accordance with the plea bargain. Karr appeals his conviction and sentence, challenging only the suppression ruling. See Tex. R. App. P. 25.2(a)(2)(A).

Standard of Review and Applicable Law

We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

3

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on evaluating credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).

When the trial court grants a motion to suppress and files accompanying findings of fact and conclusions of law, and the sole witness at the suppression hearing is the arresting officer, our only question is whether the trial court properly applied the law to the facts it found. See State v. Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86-87, 89.

The methamphetamine was found after a traffic stop. Such a stop may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he reasonably suspects that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or

4

soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards the detaining officer's subjective intent and looks solely to whether the officer has an objective basis for the stop. Id.

An officer may not act solely on a hunch, but his determination of "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Tanner v. State, 228 S.W.3d 852, 856 (Tex. App.-Austin 2007, no pet.) (citing United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751 (2002)). The facts adduced to give rise to a reasonable suspicion need not show that a person has committed, is committing, or is about to commit a particular and distinctively identifiable penal offense. Derichsweiler v. State, 348 S.W.3d 906, 916-17 (Tex. Crim. App. 2011). Instead, the articulable facts need only show (1) the occurrence of "some activity out of the ordinary . . ., [(2)] some suggestion to connect the detainee to the unusual activity, and [(3)] some indication that the unusual activity is related to crime." Johnson v. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021). Thus, when determining whether reasonable suspicion existed, the court does not inquire whether conduct is innocent or guilty but considers instead "the degree of suspicion that attaches to particular types of noncriminal acts." United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587 (1989).

5

Suppression-Hearing Evidence

At the suppression hearing, Parker County Sheriffs Office Corporal Gerry Olson^[1] testified that while driving at 2:30 a.m. on Highway 199 just outside Springtown, he saw a "dark-colored pickup truck" at the RDL tire shop, which had been closed for more than six hours. According to Olson, although there are no bars or restaurants in the tire shop's "general area," it is a "very industrial area" that has "a high crime rate where thefts and burglaries . . . occur": "there's several businesses, gas stations that are constantly broke into. There's also low-income housing areas where a lot of activity does occur, trailer parks and such, where crime is usually afoot." Olson considered the truck's presence unusual because he patrolled that area of Highway 199 regularly and normally did not see anybody in that parking lot at 2:30 a.m. He thought it was also suspicious because the business was not open at that time, and employees were not supposed to be there.

When Olson first saw the truck, it was among other vehicles in the parking lot, ^[2]but it was in motion, backing up "very close" to the other vehicles. Olson could see the truck's taillights, which were pointed toward the road; the headlights were "facing the other direction." Olson testified that the truck driver's activity that he observed

6

was consistent with that of someone who was looking for vehicles and valuables inside vehicles to steal.

According to Olson, the truck's driver did not appear to be in distress or to be a danger to himself or others, nor did he appear to be having any problems with the vehicle. Nobody had reported any potential burglaries or thefts in the area that night, but Olson did not know that until after the stop. While Olson admitted that when he stopped the truck, he had not observed any traffic violation and did not have probable cause for an arrest, he testified that he had a hunch that something was wrong:

Q. You had no reason to suspect that theft or any other criminal activity was afoot aside from the fact that someone has their taillights on in a parking lot

A. After speaking with him, it was determined that -- not during the stop, no

Q. There's nothing you can point to besides the taillights and the time of night that you suspected criminal activity afoot

A. Being in the parking lot at that hour in that area, I believed that crime was afoot during that time

The trial court also admitted Olson's arrest report into evidence. In it, he describes how he first noticed the truck and eventually made a traffic stop:

On September 13, 2018[, ] at approximately 0239 hours, I, Deputy G. Olson, was on routine patrol in the 1300 block of State Highway 199 East, Springtown, Parker County, Texas. I passed a local business identified as RDL Tires . . . . While passing the business, I observed a dark colored pickup backing up to several vehicles in the parking lot. I drive this area regularly and know employees at this business do not

7

normally work during those hours. As I turned around to check on the vehicle, I observed it to pull out of the parking lot and begin driving west in the 1300 block of State Highway 199 East. I caught up to the vehicle in the 1000 block of State Highway 199 East and activated my emergency lights for the intent of conducting an investigation for a suspicious vehicle.

When Olson stopped Karr, he found that Karr had several active...