COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00547-CR
FREDDY LEE KINDRED APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
After an elderly homeowner called 911 to report an attempted burglary, a
Fort Worth police officer saw Appellant Freddy Lee Kindred walking nearby; his
pockets bulged and he was carrying two full bags. Kindred was ultimately
arrested for and convicted of burglarizing a home not far from the 911 caller’s
residence and sentenced to forty years’ confinement. In three issues, Kindred
appeals his conviction, complaining that the trial court erred by denying his
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See Tex. R. App. P. 47.4.
motion to suppress and his request for an article 38.23 instruction and by
overruling his objection to the 911 caller’s testimony about extraneous acts. We
affirm.
II. Suppression
In his first issue, Kindred argues that the trial court erred by denying his
motion to suppress.
A. Suppression Hearing
Fort Worth Police Officer Martin Chazaretta was the only person to testify
at the suppression hearing. He stated that on May 9, 2012, at around 11:00
a.m., he received a dispatch on a residential burglary call to a home on East
Mulkey Street, which he described as an older, high-crime, predominantly
minority neighborhood. The homeowner told him and Officer Martinez, who
arrived in a separate vehicle, that a black male in a dark-colored skull cap had
tried to remove the air conditioning unit from her window.
After the two officers searched the homeowner’s backyard and the
surrounding area, Officer Martinez was sent on another call, and Officer
Chazarreta drove down East Mulkey Street towards the Interstate 35 service
road. He spotted a black male wearing a dark skull cap and carrying two large
bags containing “quite a bit of items”; one of the bags was pink and the other was
green. Officer Chazarreta also noticed that the man’s pants pockets “were
bulging with items.” The man, whom Officer Chazaretta identified as Kindred,
was walking on the service road around a half a block from the house on East
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Mulkey Street. Officer Chazaretta said that the skull cap was unusual because it
was May and warm outside.
Officer Chazarreta did not activate his patrol car’s overhead lights or do
anything to get Kindred’s attention other than pull up next to him, roll down the
passenger-side window, and ask—from five or six feet away—“Can I talk to
you?” After Kindred assented, Officer Chazarreta told Kindred that he matched
the description of a burglar, asked him what was in the bags, and asked if he
could look inside the bags. Kindred told him that he could look in the bags.
Officer Chazarreta exited his vehicle and, when he looked in the bags, saw a
laptop computer, a PS3 with game controllers, a box of men’s cologne, and a
screwdriver. Officer Chazaretta asked Kindred where he had obtained the items
that were in the bags, and Kindred told him that he had taken them from his
grandmother’s house on East Mulkey Street.
Officer Chazaretta asked Kindred for his grandmother’s phone number or
address to verify what Kindred had told him, but Kindred told him that he did not
have either. At that point, Officer Chazaretta called for additional units and asked
Kindred what he had in his pants pockets. Instead of telling Officer Chazaretta
what was in his pants pockets, Kindred pulled out a small jewelry box and
handed it to him. When Officer Chazaretta asked him what was in the box,
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Kindred told him that it was a gold ring, but when the officer opened the box, he
found a lapel pin with “FMI” in red letters.2
Officer Chazaretta offered to drive Kindred down East Mulkey so that he
could speak with Kindred’s grandmother, and he asked Kindred to sit in the back
seat of the patrol vehicle. Investigating the laptop led to the discovery that a
house behind the original complainant’s house had been burglarized; when those
homeowners identified some of the items of property in Kindred’s possession and
said that they had not given him permission to enter their house and take the
items, Officer Chazaretta arrested Kindred for burglary.3
At the conclusion of Officer Chazeretta’s testimony, the prosecutor argued
that Kindred and the officer had had a consensual encounter until Kindred’s
responses, along with the other facts and circumstances, triggered reasonable
suspicion to detain him. Kindred replied that it was not a consensual encounter,
that he was stopped and detained prior to sufficient evidence to support
2
During his direct examination, Officer Chazerreta testified that when he
saw the laptop, gaming device, and cologne, he felt that he had reasonable
suspicion to detain Kindred for further investigation. However, during cross-
examination, he stated that he believed he had reasonable suspicion based on
the burglar’s description, the items Kindred had on him, the fact that Kindred did
not know what was in the jewelry box, and that Kindred could not give a phone
number or address for his grandmother.
3
Prior to Officer Chazaretta’s testimony during trial about the bags’
contents, Kindred reurged his objections made during the suppression hearing,
and the trial court again overruled them.
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reasonable suspicion, and that all of the evidence should therefore be
suppressed.
B. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor, such as whether a given
set of historical facts amounts to a consensual encounter or a detention under
the Fourth Amendment. See 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); see also Johnson v. State, 414 S.W.3d 184, 192
(Tex. Crim. App. 2013) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008)).
C. Consensual Encounter
Kindred contends that once Officer Chazaretta told him that he matched
the description of a burglary suspect and wanted to look in the bags, the
encounter was no longer consensual because a reasonable person would no
longer have felt free to leave. He also argues that Officer Chazaretta lacked
justification at the inception of his detention because the only reason articulated
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by Officer Chazaretta for the stop was that Kindred matched the description that
he had been given of a burglar in the neighborhood.
Courts recognize three distinct types of interactions between police and
citizens: (1) consensual encounters, which require no objective justification; (2)
investigatory detentions, which require reasonable suspicion; and (3) arrests,
which require probable cause. See Johnson, 414 S.W.3d at 191; State v.
Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). As explained by the
court of criminal appeals in Woodard,
Consensual police-citizen encounters do not implicate Fourth
Amendment protections. Law enforcement is free to stop and
question a fellow citizen; no justification is required for an officer to
request information from a citizen. And citizens may, at will,
terminate consensual encounters. Even when the officer did not
communicate to the citizen that the request for information may be
ignored, the citizen’s acquiescence to an official’s request does not
cause the encounter to lose its consensual nature. Courts consider
the totality of the circumstances surrounding the interaction to
determine whether a reasonable person in the defendant’s shoes
would have felt free to ignore the request or terminate the
interaction. If it was an option to ignore the request or terminate the
interaction, then a Fourth Amendment seizure has not occurred.
341 S.W.3d at 411 (citations omitted).
Among all the circumstances of the encounter, “the officer’s conduct is
the most important factor when deciding whether an interaction was consensual
or a Fourth Amendment seizure.” Id. While no bright-line rule governs when a
consensual encounter becomes a seizure, factors suggesting that police conduct
implicates a Fourth Amendment seizure include the presence of several officers,
the use of sirens or flashers, tone of voice or words indicating that compliance is
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necessary, display of weapons, use of a police car to block the defendant’s
movement, touching the defendant physically, and retention of identification
documents. Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 1980
(1988); Garcia-Cantu, 253 S.W.3d at 243 n.35.
Taking into account the totality of the circumstances, we hold that the
contact between Kindred and Officer Chazaretta was a consensual encounter.
Officer Chazaretta testified that he pulled his police car beside Kindred, rolled
down his passenger window, and asked from a distance of five or six feet, “Can I
talk to you?” Kindred assented, and Officer Chazaretta informed him that he
matched the description of a possible burglary suspect and asked him what was
in the bags and if he could take a look inside. He did not exit his vehicle until
Kindred agreed to the request.
The record does not reveal any other factors indicative of a detention
implicating Fourth Amendment protections, such as “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of
the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554–55, 100 S. Ct. 1870, 1877 (1980). Instead, the
record reflects that Officer Chazaretta was the only officer present at the initial
contact, did not turn on his lights or siren, did not block Kindred’s movement or
order him to stop, did not display his weapon, and was conversational, not
commanding. See Chesternut, 486 U.S. at 575, 108 S. Ct. at 1980 (holding no
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seizure occurred when officer accelerated and briefly drove alongside
defendant). But cf. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)
(holding detention occurred when officer shined patrol car lights in defendant’s
direction and said, in manner that sounded like an order, “[C]ome over here and
talk to me”); Garcia-Cantu, 253 S.W.3d at 245–49 (holding detention occurred
when officer blocked defendant’s exit with his patrol car and used “authoritative,
commanding voice and demeanor that brooked no disagreement”); Hudson v.
State, 247 S.W.3d 780, 785–86 (Tex. App.—Amarillo 2008, no pet.) (holding that
activation of patrol car lights caused pedestrian to yield to officer’s show of
authority). Without such evidence of coercive police conduct, an “otherwise
offensive contact between a member of the public and the police cannot, as a
matter of law, amount to a seizure of that person.” Woodard, 341 S.W.3d at 413
(citing Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877). Further, the test is
whether a reasonable person, not a timid person, would feel free to terminate the
encounter, see State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999),
and feelings of discomfort, embarrassment, and inconvenience do not, standing
alone, amount to official coercion or seizure of a person. See Woodard, 341
S.W.3d at 413; Garcia-Cantu, 253 S.W.3d at 243; Velasquez, 994 S.W.2d at
679.
Taking into account the totality of the circumstances surrounding this
event, we conclude that the contact between Kindred and Officer Chazaretta was
a consensual encounter until Officer Chazaretta searched the bags and
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developed reasonable suspicion to detain Kindred. See Johnson, 414 S.W.3d at
191; Woodard, 341 S.W.3d at 413; see also Florida v. Bostick, 501 U.S. 429,
434, 111 S. Ct. 2382, 2386 (1991) (stating that so long as the encounter is
consensual in nature, no reasonable suspicion is required). Accordingly, we
overrule Kindred’s first issue.
III. Extraneous Offense Evidence
In his second issue, Kindred complains that the trial court abused its
discretion by allowing the homeowner who called 911 to testify about extraneous
acts that were highly prejudicial and only slightly probative because he was not
charged with burglarizing her home. He argues that her testimony was only
offered to show why the police were searching the area and that the officers’
reason for the search could have been given “without getting into the details.”
A trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after
the complained-of ruling. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex.
Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011); see also Leday v. State,
983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (stating that improper admission of
evidence is harmless when other such evidence is admitted without objection).
This rule applies whether the other evidence was introduced by the defendant or
the State. Leday, 983 S.W.2d at 718.
Here, before the homeowner testified that she had seen a black male
wearing a black stocking cap enter her bedroom through the window, Kindred
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asked for a running objection to testimony about this extraneous offense based
on rules of evidence 401, 404(b), and 403. The trial court overruled his
objection.
Following the homeowner’s testimony, Officer Chazaretta testified that he
had spoken with the homeowner when he responded to the 911 call and that she
described the attempted burglar as a black male wearing a black stocking or skull
cap. Officer Heckart also testified that he and other officers responded to the
area after the homeowner “had called in that somebody had crawled through her
back window.” Although Kindred had requested a running objection during the
homeowner’s testimony, he did not object to the two officers’ testimonies, which
contained information nearly identical to that delivered through the homeowner’s
testimony. See Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996)
(stating that a running objection is not appropriate to preserve error across
different witnesses); see also Estrada, 313 S.W.3d at 302 n.29 (noting that “any
preserved error in the admission of State’s Exhibit 74 was harmless in light of the
proper admission into evidence of very similar State’s Exhibits 73 and 75”).
Accordingly, even if the trial court erred by admitting the homeowner’s
testimony, such error was harmless in light of Kindred’s failure to object to the
substantially similar testimony of Officers Chazaretta and Heckart. See Estrada,
313 S.W.3d at 302 n.29; Leday, 983 S.W.2d at 718. Therefore, we overrule
Kindred’s second issue.
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IV. Article 38.23 Instruction
In his third issue, Kindred argues that the trial court erred by not including
an article 38.23(a) instruction on the suppression of evidence.
Code of criminal procedure article 38.23(a) prohibits the admission of
evidence against an accused in a criminal trial if the evidence was obtained in
violation of state or federal constitutions or laws. Tex. Code Crim. Proc. Ann. art.
38.23(a) (West 2005). The statute further provides:
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
Id. A defendant's right to the submission of jury instructions under article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). To be
entitled to an article 38.23(a) instruction, the defendant must show that (1) an
issue of historical fact was raised before the jury, (2) the fact was contested by
affirmative evidence at trial, and (3) the fact is material to the constitutional or
statutory violation that the defendant has identified as rendering the particular
evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.
App. 2012).
The only alleged factual dispute Kindred points to in the record concerns
whether Officer Chazaretta testified that he saw Kindred “coming from the alley”
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or “coming from the direction of the alley.” On direct examination, Officer
Chazaretta testified, “It appeared to me he came from the alley on East Mulkey.”
On cross-examination, Kindred attempted to create a contradiction during the
following exchange:
Q. So you think he’s coming from the direction of the alley?
A. That’s correct. It appeared to me.
Q. But a moment ago you testified it appeared he was coming from
the alley; is that right?
A. Yes.
Q. So do you need to change your testimony to say that he
appeared to be coming from the direction of the alley; is that a fair
change?
A. I’m sorry?
Q. Okay. A moment ago you testified that he appeared to be
coming from the alley. Do you recall that?
A. Yes.
Q. And now you’re telling us that what you mean is he appeared to
be coming from the direction of the alley?
A. It appeared to me he was coming from the direction of the alley,
yes.
Q. So if you said a moment ago that he appeared to be coming from
the alley, do you need to change your testimony to say he appeared
to be coming from the direction of the alley?
A. No.
Q. So in your opinion, coming from the direction of a street is just
the – is satisfaction to you that he is coming out of that alley?
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A. I didn’t say I observed him coming from the alley. I said it
appeared to me he was coming from the alley, from the direction of
the alley.
Q. This is my last question, and we’ll move on. So you now deny
that you testified a moment ago that he appeared to be coming from
the alley? Do you deny saying that?
A. I stated it appeared to me he was coming from the direction of
the alley.
Although Kindred argues that the testimony above reveals a “highly
contested issue” in the record, we find that this testimony does not create a
disputed issue of fact under the most liberal of readings. See Garza v. State,
126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (explaining that mere insinuations by
appellant’s attorney that no inventory slip was made, in light of testimony by
officers that such a slip did indeed exist, did not raise a fact issue as to the
existence of the inventory slip). Further, Officer Chazaretta repeatedly asserted
that his original testimony was an accurate representation of what he had
observed, and nothing in the record affirmatively contested his version of events.
See Robinson, 377 S.W.3d at 719 (holding that the disputed fact must be
affirmatively contested for appellant to be entitled to an article 38.23 instruction).
Furthermore, whether Officer Chazaretta saw Kindred “coming from the alley” or
“coming from the direction of the alley” would not be considered a fact material to
determining whether his initial interaction with Kindred was consensual. See
Madden, 242 S.W.3d at 509–10.
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Having determined that the record does not contain a disputed issue of
fact that is material to Kindred’s claim, we hold that the trial court did not err by
denying Kindred’s request for an article 38.23 instruction. Therefore, we overrule
Kindred’s third issue.
V. Conclusion
Having overruled all of Kindred’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 22, 2014
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