Affirmed as Modified; Opinion Filed June 30, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01471-CR

                                 DEVON STIFF, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-0619538-W

                              MEMORANDUM OPINION
                           Before Justices Lang, Stoddart, and Schenck
                                    Opinion by Justice Lang
       Following a plea of not guilty, Devon Stiff (“Appellant”) was convicted by a jury of

possession with intent to deliver a controlled substance, to wit: cocaine, in an amount by

aggregate weight, including any adulterants or dilutants, of 400 grams or more. The trial court

assessed punishment at 40 years’ confinement.

       Appellant asserts the following points in three issues: (1) the trial court erred in denying

Appellant’s motion to suppress; (2) the trial court compelled Appellant to testify in violation of

his rights under the Texas Constitution and the Fifth Amendment; and (3) this Court should

reform the judgment to reflect that the trial court assessed punishment in this case.
       For the reasons below, we decide against Appellant on his first three issues. We decide

in favor of Appellant on his fourth issue, and we modify the judgment to reflect that the trial

court assessed punishment. We affirm the judgment as modified. See TEX. R. APP. P. 43.2(b).

                       I. FACTUAL AND PROCEDURAL BACKGROUND

       Joseph Stinson is a certified peace officer who has worked as a police officer for Dallas

Area Rapid Transit (“DART”) since 2000. At approximately 8:00 p.m. on February 15, 2006,

Stinson was on patrol in the central business district in downtown Dallas when he noticed

Appellant “had been loitering at numerous bus stops around [the] Greyhound Bus Station” for

approximately thirty minutes without making any effort to board a bus, approach the ticket

window, or use any DART services. During this time, several buses arrived, dropped off or

picked up passengers, and departed. Stinson also noticed that Appellant was “staggering as he

was walking and kind of stumbling a little bit as if he was intoxicated.”

       According to Stinson, DART has a no-loitering policy “to deter crime,” including “the

movement of narcotics.” His observations led him to believe that Appellant was loitering,

intoxicated in public, sick, or in need of assistance. So, Stinson attempted to make contact with

Appellant. Stinson was wearing “full uniform” and driving a “marked squad car that night.” He

“pulled up behind [Appellant]” and “activated [his] emergency lights on [his] police car.” As he

was getting out of the vehicle, Appellant “took off running” while “dragging and pulling [a large

nylon zipper] suitcase behind him.” Stinson “instructed [Appellant] several times to stop, police,

stop,” but Appellant did not comply. Then, Stinson followed Appellant in his police car for

approximately fifty feet until Appellant stopped. Upon approaching Appellant, Stinson observed

that Appellant seemed “a little agitated,” “his speech was slurred, his eyes were bloodshot, and

his movements were very slow.” Based on his experience and these observations, Stinson

arrested Appellant for evading detention, public intoxication, and disorderly conduct. Once

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Appellant was in custody, Stinson and his “backup officers” searched Appellant and his suitcase.

In the suitcase, the officers found $6,000 in cash, “a brick of cocaine,” which is “a kilo of

[powder] cocaine,” and “several cream-colored rocks that’s commonly crack cocaine.”

       After Appellant was charged with possession with intent to deliver a controlled

substance, to wit: cocaine, in an amount by aggregate weight, including any adulterants or

dilutants, of 400 grams or more, he filed a motion to suppress the evidence obtained as a result of

his detention and arrest. Appellant contended that he was “arrested without lawful warrant,

probable cause or other lawful authority.” After a hearing, the trial court denied the motion.

       On October 9, 2013, after a trial on the merits, the jury returned a verdict of guilty.

Appellant elected to have the trial court assess punishment. Appellant did not testify during the

punishment phase of trial. After the State and the Appellant rested in the punishment phase, the

following exchange took place:

       THE COURT: Because you have been unwilling to testify, which is your right.
       I’m not criticizing you for that. It makes it difficult for me to figure out who you
       really are and what’s best for you under the facts of this particular case. So before
       I pronounce sentence on you, I want you to explain to me, if you want to, or if
       you feel you have something you want to say to me, I’m gonna give you that
       opportunity to do so. If you want to do that, stand up and talk to me.

       THE DEFENDANT: Yes, sir. At this time one thing I want to say is that, you
       know, I did turn myself in in January 2012. . . . I would like the opportunity to be
       given a chance to redeem myself. I thank you for the opportunity to talk to you,
       even though I have exercised my right not to make any testimony today. But, you
       know, at this time that’s about all I have to say.

       THE COURT: That is your right. I’m not holding that against you in any way at
       all. Going through this, is it my understanding — well let me ask you. How
       many children do you have?

Appellant answered that question and several other questions by the trial court. Then, the trial

court assessed punishment at 40 years’ confinement.




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                                      II. MOTION TO SUPPRESS

       In issue one, Appellant contends the trial court erred in denying his motion to suppress

the evidence obtained as a result of his detention and arrest because “Stinson did not have

reasonable suspicion to detain Appellant.”

                                            A. Standard of Review

       We review a motion to suppress under a bifurcated standard. State v. Kerwick, 393

S.W.3d 270, 273 (Tex. Crim. App. 2013). “First, the courts must give ‘almost total deference to

a trial court’s determination of the historical facts that the record supports,’ and second, the

courts review de novo the trial court’s application of the law to facts, which do not turn on

credibility and demeanor.” Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013)

(quoting Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007)). “Whether the facts

known to the officer at the time of the detention amount to reasonable suspicion is a mixed

question of law that is reviewed de novo on appeal.” Kerwick, 393 S.W.3d at 273. “When the

trial court does not issue findings of fact, as here, findings that support the trial court’s ruling are

implied if the evidence, viewed in a light most favorable to the ruling, supports those findings.”

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

                                              B. Applicable Law

       “The Fourth Amendment to the United States Constitution permits a warrantless

detention of a person, short of a full-blown custodial arrest, if the detention is justified by

reasonable suspicion.” Kerwick, 393 S.W.3d at 273. “‘[A] law enforcement officer’s reasonable

suspicion that a person may be involved in criminal activity permits the officer to stop the person

for a brief time and take additional steps to investigate further.’” Id. (quoting Hiibel v. Sixth

Judicial Dist. Court, 542 U.S. 177, 185 (2004)). “Reasonable suspicion to detain a person exists

if an officer has specific, articulable facts that, combined with rational inferences from those

                                                  –4–
facts, would lead him to reasonably conclude that the person detained is, has been, or soon will

be engaged in criminal activity.” Id. “These facts must show unusual activity, some evidence

that connects the detainee to the unusual activity, and some indication that the unusual activity is

related to crime.” Id. The reasonable suspicion test “is an objective standard that disregards the

actual subjective intent of the arresting officer and looks, instead, to whether there was an

objectively justifiable basis for the detention.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim.

App. 2013). “The standard also looks to the totality of the circumstances,” id., and “reasonable

suspicion can exist even if the conduct is ‘as consistent with innocent activity as with criminal

activity,’” York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011).

       “A person commits the offense of public intoxication if he ‘appears in a public place

while intoxicated to the degree that the person may endanger the person or another.’” Id.

(quoting TEX. PENAL CODE ANN. § 49.02(a) (West 2011)). “The essential element of the offense

is that the individual must be intoxicated to the extent that he ‘may’ endanger himself or another.

Proof of ‘potential’ danger either to the accused or others is enough to show the essential

element.” Segura v. State, 826 S.W.2d 178, 184 (Tex. App.—Dallas 1992, pet. ref’d) (citations

omitted). “‘Public place’ means any place to which the public or a substantial group of the

public has access and includes, but is not limited to, streets, highways, and the common areas of

schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” TEX.

PENAL CODE ANN. § 1.07(a)(40) (West 2011).

                                      C. Application of Law to Facts

       Appellant asserts that Stinson did not have reasonable suspicion to detain him because his

behavior prior to the stop was not “criminal activity” and Stinson did not provide articulable

facts indicating that Appellant was intoxicated or a danger to himself or others. The State

responds that Stinson had reasonable suspicion for the stop because “it was reasonable to believe

                                                –5–
that Appellant may be engaged in the crime of public intoxication based on the totality of

Appellant’s behavior and the circumstances.”

       In this case, the trial court denied Appellant’s motion to suppress without issuing any

findings of fact or conclusions of law, so we will imply the necessary fact findings that would

support the trial court’s ruling if the evidence, when viewed in the light most favorable to the

ruling, supports these fact findings. See Turrubiate, 399 S.W.3d at 150. Stinson testified as

follows: (1) Appellant stood at three or four different bus stops in downtown Dallas for over

thirty minutes “at nighttime” without boarding any of the buses that arrived and departed; (2)

Appellant did not greet anyone at the bus stops or approach the ticket counter; (3) Appellant was

“staggering” and “stumbling” as he walked, which suggested to Stinson that Appellant may be

intoxicated or in need of assistance; and (4) DART has a no-loitering policy “to deter crime.”

Appellant appeared to be loitering at multiple bus stops and “staggered” or “stumbled” as he

walked on the public streets in downtown Dallas at night. This constituted sufficient, articulable

facts that would justify an officer’s reasonable suspicion that Appellant was engaged in the

criminal offense of public intoxication. See Dixon v. State, 187 S.W.3d 767, 769 (Tex. App.—

Dallas 2006, no pet.) (concluding that the circumstances “would justify an officer to reasonably

believe that appellant engaged in the criminal offense of public intoxication” when “appellant

was staggering alone down a public street after midnight” ); see also Miranda v. State, No. 04-

09-00779-CR, 2010 WL 4008439, at *2 (Tex. App.—San Antonio Oct. 13, 2010, no pet.) (mem.

op., not designated for publication) (concluding officer had reasonable suspicion to detain

appellant when he observed her “staggering and swaying as she walked down a sidewalk at a

major intersection in San Antonio” at night in an area known for drugs and prostitution).

Therefore, Stinson was permitted to briefly detain Appellant to investigate further. See Balli v.

State, 530 S.W.2d 123, 125–26 (Tex. Crim. App. 1975), overruled on other grounds by

                                               –6–
Chudleigh v. State, 540 S.W.2d 314, 319 (Tex. Crim. App. 1976) (concluding that “appropriate

circumstances” for a brief investigative stop existed when appellant “swayed noticeably” as he

walked in the middle of a public street after dark); Miranda, 2010 WL 4008439, at *2; Dixon,

187 S.W.3d at 769. Contrary to Appellant’s argument, the fact that these circumstances may

also be consistent with innocent activity does not preclude a finding of reasonable suspicion. See

York, 342 S.W.3d at 536. Accordingly, we conclude the trial court did not err in denying

Appellant’s motion to suppress. We decide Appellant’s first issue against him.

                           III. RIGHT AGAINST SELF-INCRIMINATION

       In his second and third issues, Appellant asserts that “the trial court compelled

[Appellant] to testify during the punishment phase of trial in violation of [his] right to not testify”

under the Fifth Amendment and the Texas Constitution. The State responds that Appellant

“forfeited his right to remain silent when he voluntarily testified in his own defense.”

                                           A. Standard of Review

       We review de novo whether a defendant voluntarily testified or whether he was coerced

to testify against his will. See Minnesota v. Murphy, 465 U.S. 420, 434–39 (1984) (reviewing

the issue without deference to the trial court); Johnson v. State, 357 S.W.3d 653, 657 (Tex. Crim.

App. 2012) (same); Chapman v. State, 115 S.W.3d 1, 6–11 (Tex. Crim. App. 2003) (same).

                                             B. Applicable Law

       Both the Fifth Amendment to the United States Constitution and article I, section 10 of

the Texas Constitution “prohibit compelling a defendant to testify against himself in a criminal

proceeding.” Birdsong v. State, 82 S.W.3d 538, 541 (Tex. App.—Austin 2002, no pet.); see U.S.

CONST. amend V; TEX. CONST. art. I, § 10. The privilege against self-incrimination applies

during the punishment phase of trial. Mitchell v. United States, 526 U.S. 314, 325–27 (1999);

Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (“Any effort by the State to compel [the

                                                 –7–
defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth

Amendment.”).

       “To seek the protection of the Fifth Amendment, a defendant in a criminal case normally

must affirmatively assert the privilege.” Johnson, 357 S.W.3d at 657. “[I]f a defendant fails to

affirmatively assert the privilege, but nonetheless provides incriminating statements, it cannot be

said that the person has been ‘compelled’ to provide evidence against himself.” Id. (citing

Murphy, 465 U.S. at 427).         “Thus, the general rule is that the privilege to avoid self-

incrimination is ordinarily not self-executing.” Id. “Just as a defendant can fail to invoke his

Fifth Amendment privilege, a defendant can also voluntarily forfeit his Fifth Amendment

privilege if he freely chooses to take the stand and make incriminating statements.” Id. at 658.

       One exception to the general rule that a defendant must affirmatively invoke his right to

remain silent is the “classic penalty situation.” Johnson, 357 S.W.3d at 658 (citing Murphy, 465

U.S. at 434; Garner, 424 U.S. 648, 661–63 (1976)). In a “penalty situation,” “the defendant is

foreclosed from making a free decision to invoke his privilege to silence because he is faced with

a new or additional penalty for exercising his constitutional right.” Id. at 658–59. When

confronted with a “penalty situation,” a defendant “may succumb to the pressure of the penalty

rather than freely choosing to remain silent,” so “the failure on the part of the defendant to

affirmatively invoke his right to avoid self-incrimination is excused.” Id. Thus, in a “penalty

situation,” the right to remain silent is self-executing. Id.

       When determining whether a defendant’s right to remain silent was self-executing, the

issue “is not whether [the defendant] made a knowing, intelligent, and voluntary waiver of his

privilege to remain silent. The critical inquiry is whether [the defendant] voluntarily testified or

whether [the defendant] was ‘coerced’ to testify against his will.” Id. (citation omitted). We first

review the record for evidence that the incriminating statements were made because the

                                                  –8–
defendant was expressly threatened with a penalty for remaining silent. See Johnson, 357

S.W.3d at 658–59; see also Murphy, 465 U.S. at 435, 437–38. Second, we determine whether

the defendant “was confronted with a penalty situation by implication,” such that the defendant

could have reasonably believed he was being threatened with a penalty for remaining silent. See

Johnson, 357 S.W.3d at 658–59; see also Murphy, 465 U.S. at 435, 437–38.

                                  C. Application of the Law to the Facts

       Appellant contends that the trial “judge’s words manifested a clear message that

Appellant must testify before the court would consider a less harsh sentence in this case.” In

response, the State asserts that “[t]he trial court gave Appellant an opportunity to offer mitigating

evidence” and Appellant voluntarily testified.

       The Court of Criminal Appeals recently addressed a similar situation. See Johnson, 357

S.W.3d at 654–57. In Johnson, after both sides had rested in the punishment phase of trial, the

following exchange took place:

       [TRIAL COURT]: Your client doesn’t want to testify?

       [DEFENSE COUNSEL]: No, Your Honor.

       [TRIAL COURT]: Is that right?

       [DEFENSE COUNSEL]: If you want to testify, I will put you up there.

       [TRIAL COURT]: In all candor, I would kind of like to know what he’s been
       doing for the last 18 years.

       [DEFENSE COUNSEL]: Okay.

       [TRIAL COURT]: Come to the front of the courtroom.

Id. at 654. The appellant was then sworn in and testified. During cross examination, the trial

court interrupted and asked the appellant a series of questions. Id. On appeal, the appellant

argued he had affirmatively asserted his right to remain silent and was compelled to testify in



                                                 –9–
violation of the Fifth Amendment. Id. at 656–57. Based on this record, the Court of Criminal

Appeals concluded that

          Appellant could not have reasonably believed he was confronted with the choice
          either to be silent and be punished or to capitulate and give incriminating
          statements against his will. Instead, the record in this case shows that, like
          Birdsong, Appellant and his counsel perceived the opportunity to offer mitigating
          evidence in the hope of leniency at sentencing.

Id. at 661 (citing Birdsong, 82 S.W.3d at 544).

          In the case before us, the trial court did not tell Appellant that he would receive a greater

sentence if he chose not to testify, and neither Appellant nor his counsel made any comment or

objection indicating that they believed if Appellant remained silent a greater punishment would

be assessed. See Johnson, 357 S.W.3d at 659. We conclude the record does not show that

Appellant was expressly placed in a “penalty situation” because there is no direct evidence that

Appellant was confronted with a penalty. See id.

          Next, we must determine whether Appellant “was confronted with a penalty situation by

implication.” See id. After explaining that Appellant’s refusal to testify “ma[de] it difficult for

[the trial court] to figure out who you [Appellant] really are and what’s best for you,” the trial

court stated, “if you [Appellant] have something you want to say to me, I’m gonna give you the

opportunity to do so.”       Appellant replied, “Yes, sir” and thanked the trial court “for the

opportunity to talk to [it], even though I have exercised my right not to make any testimony

today.”

          The trial court admonished Appellant regarding his right to remain silent and gave

Appellant the option to testify or not. The record shows that Appellant understood he had a right

to remain silent and that neither he nor his counsel made any objections before he testified. See

id. at 661; see also Birdsong, 82 S.W.3d at 544 (concluding appellant was not compelled to

testify, but rather voluntarily testified when the appellant and his counsel did not object to

                                                  –10–
appellant being called as a witness, appellant “answered each question openly, freely, and

without hesitation,” and the record reflected “a punishment-hearing strategy of seeking the

district court’s leniency”). Further, none of the statements by the trial court amounted to a threat

that Appellant would be penalized if he exercised his right to remain silent. See Johnson, 357

S.W.3d at 660–61. Based on the record, a reasonable person would perceive the trial court’s

statements as a request to offer mitigating evidence rather than an implied threat of punishment.

See id. at 659–61. Appellant could not have reasonably interpreted the trial court’s statements as

“a threat to penalize Appellant if he did not testify.” See id.

       We conclude that Appellant “could not have reasonably believed that he was confronted

with the choice either to be silent and be punished or to capitulate and give incriminating

statements against his will.” See id. We decide against Appellant on his second and third issues.

                                IV. MODIFICATION OF JUDGMENT

       In his fourth issue, Appellant asks this Court to modify the judgment in this case to

reflect that the trial court assessed punishment. The judgment currently states that punishment

was assessed by the jury. The State supports this modification.

                                             A. Applicable Law

       “This Court has the power to modify an incorrect judgment to make the record speak the

truth when we have the necessary information to do so.” Estrada v. State, 334 S.W.3d 57, 63

(Tex. App.—Dallas 2009, no pet.); see also TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993). “The authority of an appellate court to reform an incorrect

judgment is not dependent upon the request of any party, nor does it turn on the question of

whether a party has or has not objected in the trial court.” Asberry v. State, 813 S.W.2d 526,

529–30 (Tex. App.—Dallas 1991, pet. ref’d).




                                                –11–
                                 B. Application of the Law to the Facts

        The first page of the trial court’s judgment reflects that punishment was assessed by the

jury. However, the record shows that the trial court assessed punishment in this case. After the

jury returned a verdict of guilty, the trial court dismissed the jury from service.       At the

conclusion of the punishment phase of trial, the trial court assessed punishment of forty years’

confinement. Furthermore, the second page of the judgment reflects that Appellant “elected to

have the Court assess punishment” and that the court assessed the punishment as indicated on the

first page of the judgment. Because the record unambiguously indicates the trial court assessed

punishment, we modify the judgment to correct the error. Accordingly, we decide Appellant’s

fourth issue in his favor.

                                          V. CONCLUSION

        The trial court did not err in denying Appellant’s motion to suppress, and Appellant was

not compelled to testify. We modify the judgment to reflect that the trial court, not the jury,

assessed punishment in this case. We affirm the judgment as modified. See TEX. R. APP. P.

43.2(b).




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47
131471F.U05




                                              –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DEVON STIFF, Appellant                                 On Appeal from the 363rd Judicial District
                                                       Court, Dallas County, Texas
No. 05-13-01471-CR         V.                          Trial Court Cause No. F-0619538-W.
                                                       Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                           Stoddart and Schenck participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect that the trial court, not the jury, assessed punishment in this case.

As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.


Judgment entered this 30th day of June, 2015.




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