IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 9, 2007
______________________________
JACQUELINE V. HARPER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-409263; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Jacqueline V. Harper, appeals her conviction for possession of a controlled substance, methamphetamine, in an amount less than one gram and her sentence of one year incarceration in a state jail facility in the Texas Department of Criminal Justice. Appellant contends that the trial court erred in overruling her motion to suppress evidence. We affirm.
Background
On the morning of April 4, 2005, Lubbock Police Officer John Hayes was dispatched to a Walgreen's parking lot to investigate a report of a person passed out in a vehicle in the store's parking lot. Upon his arrival, Hayes observed that an ambulance had already arrived and that EMS personnel were speaking to a female sitting inside a vehicle. From Hayes's observation, he noticed that appellant was slow in responding and appeared groggy. The EMS personnel determined that appellant was not in medical distress and left the scene. Hayes opined that, at that point, he was uncertain as to whether appellant was intoxicated or simply very tired. Being uncertain of appellant's ability to safely operate a motor vehicle and drive herself home, Hayes decided to ask appellant to step out of her vehicle. As appellant stepped out of the vehicle, a small baggie containing a white, crystal-like substance fell from her lap. Hayes then arrested her for possession of a controlled substance. The substance was later verified to be methamphetamine.
At a pretrial hearing, appellant challenged the admission of the methamphetamine by a motion to suppress contending that the controlled substance was obtained as a result of an illegal detention. The trial court overruled appellant's motion to suppress. At trial, a jury found appellant guilty of possession of a controlled substance, state jail felony, and the trial court assessed her punishment at one year in a state jail facility. Appellant appeals the trial court's ruling on the motion to suppress the admission of the methamphetamine. We affirm.
An appellate court reviews a trial court's ruling on a motion to suppress for abuse of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Under this standard, we give almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When, as in this case, the trial court makes no explicit findings of historical fact, we presume that it made those findings necessary to support its ruling, provided that they are supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). We give the same amount of deference to a trial court's ruling on "application of law to fact questions" if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. We review a trial court's decisions regarding detention and reasonable suspicion de novo. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App.1998).
A police officer's interaction with a citizen can be classified as an encounter, detention, or seizure. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in public to ask questions. Id. Encounters do not require any justification whatsoever on the part of an officer. Id. (citing U.S v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). An investigative detention is a confrontation of a citizen by law enforcement officers wherein a citizen yields to a display of authority and is temporarily detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). An investigative detention is permitted if it is supported by reasonable suspicion. Citizen, 39 S.W.3d at 370. See also Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion is a particularized and objective basis for suspecting the person is, has been, or soon will be engaged in criminal activity. Citizen, 39 S.W.3d at 370 (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)). A determination of whether the police interaction is an encounter, detention or seizure is assessed by looking at the totality of the circumstances. See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997).
The issue presented on appeal is whether Hayes's interaction with appellant, specifically Hayes's request to step out of the vehicle, constituted a sufficient display of authority to raise the encounter into an investigative detention, such that appellant no longer felt free to decline the officer's request or otherwise terminate the encounter. See Citizen, 39 S.W.3d at 370 (quoting State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999)). If we conclude that the interaction became an investigative detention, we must then determine whether the officer had reasonable suspicion to support such detention.
Appellant contends that the interaction was a detention and that Hayes, at the time, did not have reasonable suspicion to justify the detention of appellant. However, nothing in the record indicates the officer's actions were such a display of authority that a reasonable person would not have felt free to decline an officer's request for compliance. See Brewer v. State, 932 S.W.2d 161, 168 (Tex.App.-El Paso 1996, no writ) (holding that consensual encounter occurred when a uniformed officer approached defendant in a parking lot, did not block defendant's path or order him to stop, and did not indicate that defendant was required to comply with request to step back from car door); Ashton v. State, 931 S.W.2d 5, 7 (Tex.App.-Houston [1st Dist.] 1996, writ ref'd) (holding that no investigatory detention occurred when unidentified officer approached defendant, who was sitting in a parked car in a public place, and asked her to roll down the window); Reyes v. State, 899 S.W.2d 319, 323 (Tex.App.-Houston [14th Dist.] 1995, writ ref'd) (noting that no seizure occurred when officer identified himself and asked to speak to defendant, but did not display a gun, tell defendant that he was a narcotics agent, order defendant to comply, or ask to search defendant's bag). Even though the EMS personnel had concluded that appellant did not have a medical emergency, Hayes continued to have concerns as to whether appellant was able to drive home safely. Hayes testified that he asked appellant to step out of the vehicle so that he could further observe appellant for the two fold purpose of observing her for the effects of intoxication as well as to give appellant an opportunity to stand up and "get the blood flowing" to see if appellant would become more alert. From the record, Hayes was not attempting to gain further information to arrest Harper, but was attempting to accurately resolve the dispatch call. See Terry, 392 U.S. at 13 (police encounters can be initiated for a variety of purposes wholly unrelated to a desire to prosecute a crime); Hulit v. State, 982 S.W.2d 431, 438 (Tex.Crim.App. 1998) (police officers acted reasonably when they approached a vehicle to ask if the person needed assistance). Therefore, we conclude that Hayes's interaction with appellant was an encounter and no further justification was needed for the officer's actions.
Even assuming, arguendo, that the encounter had become an investigative detention when Hayes asked appellant to step out of the vehicle, Hayes testified that he suspected that appellant was intoxicated. Given that the record indicates that Hayes personally observed appellant in the Walgreen's parking lot behind the wheel of a vehicle in a groggy or "out of it" state, we conclude that Hayes had reasonable suspicion to suspect that appellant was or would soon be involved in criminal activity. See Tex. Pen. Code Ann. §§ 49.02, 49.04 (Vernon 2003) (public intoxication and driving while intoxicated). Therefore, when, as in this case, the trial court makes no explicit findings of historical fact, we can presume that it made those findings necessary to support its ruling. See Carmouche, 10 S.W.3d at 327. Hence, even if the interaction had become an investigative detention, the trial court could have found that the officer had reasonable suspicion to justify the detention.
Whether the interaction between Hayes and appellant was an encounter or an investigative detention, the trial court did not err in overruling appellant's motion to suppress. We overrule appellant's issue and affirm the trial court's judgment.
Mackey K. Hancock
Justice
Pirtle, J., concurring.
Publish.
UnhideWhenUsed="false" Name="Colorful List Accent 3"/>
NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-00171-CR and 07-10-00172-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 4, 2011
GREGORIO RODRIGUEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2
AND THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2009-455,818, 2009-458,190, 2009-425,597, 2009-422,825;
HONORABLE CECIL PURYEAR, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In each of these four appeals, appellant Gregorio Rodriguez appeals his conviction on an open plea of guilty and resulting sentence.
Offenses committed on December 21, 2008:
In appellate case number 07-10-0172-CR, appellant was convicted of evading arrest or detention with a vehicle and sentenced to 18 months in a state jail facility;[1]
In appellate case number 07-10-0122-CR, appellant was convicted of possession of marijuana of less than two ounces in a drug free zone and sentenced to 12 months in the Lubbock County Jail.[2]
Offenses committed on October 25, 2009:
In appellate case number 07-10-0171-CR, appellant was convicted of possession of a controlled substance listed in penalty group 1, cocaine of less than one gram and sentenced to 24 months in a state jail facility;[3]
In appellate case number 07-10-0123-CR, appellant was convicted of driving while intoxicated and sentenced to 6 months in the Lubbock County Jail.[4]
In each case, appellants court-appointed appellate attorney has filed a motion to withdraw from representation supported by an Anders brief.[5] Agreeing with counsels conclusion that the record fails to show any arguably meritorious issue capable of supporting an appeal, we grant the motion to withdraw in each case and affirm the trial courts judgments.
Punishment hearing testimony showed that on December 21, 2008, a police officer saw a vehicle driving erratically. The officer attempted a traffic stop. As the officer followed the vehicle, he saw a person leap from the vehicle while it remained in motion. The vehicle then jumped a curb, knocked down a fence, and collided with a parked vehicle in a driveway. The location of the accident was within 1,000 feet of a public school. When the officer entered the passenger compartment to turn off the ignition and place the transmission in park, he saw an open container of alcohol. An officer later also found a baggy containing what he believed was marijuana. Police eventually were able to identify appellant as the person operating the vehicle.
Punishment evidence also showed that on October 25, 2009, a motor vehicle driven by appellant struck a police vehicle in the presence of officers. Appellant attempted to flee on foot, but was apprehended and arrested for evading arrest or detention. An officer detected the odor of alcohol on appellants breath and the odor of marijuana on his person. While searching appellant for weapons, the officer discovered a baggie containing what he believed was marijuana. In the officers opinion, appellant appeared intoxicated. He had difficulty standing and walking and was unresponsive to questions. The officer transported appellant to a holding facility. As appellant left the police vehicle, a clear plastic baggie containing a white powder fell from his pant leg. According to a field test, the substance was cocaine. This was later confirmed by the Texas Department of Public Safety Crime Laboratory.
Appellant was charged by indictment or information with the four offenses, and entered guilty pleas to the charged offenses without a plea bargain agreement. A punishment hearing in each case was held the same day as the plea hearing. The trial court admonished appellant of the applicable ranges of punishment and determined he was a United States citizen. It also explained and determined appellant wished to waive the right to trial by jury and the right against self-incrimination. Two police officers gave the testimony we have summarized of the circumstances of the December 2008 and October 2009 offenses. Appellant presented two witnesses. A deacon testified of appellants church involvement over the preceding five months. The second witness, a relative of appellant, testified of his industry in the workplace, abstinence from alcohol, and family commitment. Following the close of evidence and arguments, the court sentenced appellant in each case. Appellant obtained trial court certification of the right of appeal and timely appealed.
Thereafter, appellants appointed appellate counsel filed a motion to withdraw supported by an Anders brief. In the brief, he certifies to his diligent review of the record and his opinion under the controlling authorities and facts of the cases no reversible error or arguably legitimate ground for appeal exists. The brief discusses the procedural history of the case and the events at the plea hearing. Counsel discusses the applicable law and sets forth the reasons he believes no arguably meritorious issues for appeal exist. A letter to appellant from counsel, attached to counsels motion to withdraw, indicates that a copy of the Anders brief and the motion to withdraw were served on appellant, and counsel advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused). By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant did not file a response.
In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If we determine the appeal has arguable merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
In the Anders brief, counsel concludes the appeal is frivolous. We have made an independent review of the entire record to determine whether arguable grounds supporting an appeal exist. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We find no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.
Accordingly, we grant counsels motion to withdraw[6] in each case and affirm the judgments of the trial court.
James T. Campbell
Justice
Do not publish.
[1] A person commits the offense of evading arrest or detention if he intentionally flees a person he knows is a peace officer lawfully attempting to arrest or detain him. Tex. Penal Code Ann. § 38.04(a) (West Supp. 2010). The offense is a state jail felony if the actor uses a vehicle while in flight and the actor has not previously been convicted under Penal Code § 38.04. Tex. Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010).
[2] Possession of two ounces or less of marijuana is a Class B misdemeanor, Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010), but increases to a Class A misdemeanor if committed within 1,000 feet of the real property of a school. Tex. Health & Safety Code Ann. § 481.134(f)(1) (West 2010). A Class A misdemeanor is punishable by confinement in jail for up to one year and/or a fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21 (West 2003).
[3] Possession of less than one gram of cocaine is a state jail felony. Tex. Health and Safety Code Ann. § 481.102(3)(D) (West 2010) (cocaine is a Penalty Group 1 controlled substance) and Tex. Health and Safety Code Ann. § 481.115(a),(b) (West 2010) (possession of less than one gram of cocaine is a state jail felony). A state jail felony is punishable by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $ 10,000. Tex. Penal Code Ann. § 12.35 (West 2010).
[4] In the absence of facts not charged here, driving while intoxicated is a Class B misdemeanor. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West 2003).
[5] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).
[6] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendants right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.