COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00085-CR
JERRY PAUL LUNDGREN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW OF WISE COUNTY
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OPINION
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Appellant Jerry Paul Lundgren appeals from the denial of his motion to
suppress and motion to quash the State’s motion to revoke his community
supervision. Finding no reversible error in the denials, we affirm the trial court’s
judgment.
I. BACKGROUND
On August 18, 2010, Appellant was charged by information with driving
while intoxicated. The information included an allegation that Appellant
previously had been convicted of driving while intoxicated in 2009. Appellant
pleaded guilty to the information under a plea-bargain agreement, and the trial
court sentenced Appellant to 365 days’ confinement on January 7, 2011. The
trial court suspended Appellant’s sentence and placed him on community
supervision for 18 months. The community-supervision terms prohibited
Appellant from committing any new offense and required him to abstain from
alcohol. The trial court’s judgment stated that the sentence commenced that
same day—January 7, 2011. Appellant’s plea-bargain agreement further
included the provision that “the defendant has NO right of appeal.” The trial court
admonished Appellant that he, indeed, could not appeal:
When the [C]ourt follows a plea[-]bargain agreement,
permission of the Court must be given before you can prosecute an
appeal on any matter in the case, except for a matter raised by
written motion filed prior to trial. This Court seldom consents to an
appeal where a conviction is based upon a guilty plea.
Seven days later on January 14, 2011, Appellant again was arrested
following a report to police that the driver of a silver truck was passed out in the
drive-through lane of a Whataburger. The responding police officer saw a silver
truck in the drive-through lane as reported. The driver, who the officer later
identified as Appellant, was awake when the officer approached the truck. Based
on Appellant’s demeanor and the odor of alcohol, the officer conducted a field-
sobriety test and then arrested Appellant for driving while intoxicated.
On January 19, 2011, Appellant filed a notice of appeal from his
community-supervision sentence. On January 28, 2011, Appellant filed a motion
2
for new trial, which was overruled by operation of law on March 23, 2011. 1 See
Tex. R. App. P. 21.8(c). On February 18, 2011, the State filed a motion to revoke
Appellant’s community supervision based on the new January 14, 2011 offense
and Appellant’s use of alcohol—both of which violated the community-
supervision terms. On March 3, 2011, this court dismissed Appellant’s appeal for
want of jurisdiction based on Appellant’s waiver and issued mandate on May 12,
2011. Lundgren v. State, No. 02-11-00023-CR, 2011 WL 754344, at *1 (Tex.
App.—Fort Worth Mar. 3, 2011, no pet.) (mem. op., not designated for
publication).
On June 22, 2011, the trial court entered a “Post Mandate Enforcement of
Prior Judgment of Conviction Sentence Suspended,” stating that the sentence
would commence that same day. Two days later, the trial court entered a nunc-
pro-tunc, post-mandate judgment, apparently to include the suspension of
Appellant’s driver’s license for 180 days, which had been part of the January 7,
2011 judgment but had been omitted from the June 22, 2011 post-mandate
judgment. The nunc-pro-tunc judgment also stated that the sentence
commenced on June 22, 2011.
On July 13, 2011, Appellant sought to quash the State’s motion to revoke
his community supervision because the grounds for the motion—Appellant’s
arrest for a new offense and use of alcohol—occurred when the community-
1
It appears the motion for new trial was never presented to the court as
required by rule 21.6. See Tex. R. App. P. 21.6.
3
supervision terms had not taken legal effect. The trial court denied the motion
and explained that Appellant’s “failure to obtain permission of the trial court was a
failure at the trial court level, not the appellate court level, so the probation terms
came into effect immediately” on January 7, 2011. During the subsequent
hearing on the State’s motion to revoke, Appellant sought to suppress any
evidence discovered during Appellant’s January 14, 2011 arrest based on a lack
of “reasonable suspicion or probable cause to detain and seize [Appellant].” The
trial court denied Appellant’s motion to suppress, found by a preponderance of
the evidence that Appellant had violated the terms of his community supervision,
revoked Appellant’s community supervision, and sentenced him to 300 days’
confinement. This appeal followed.
II. DENIAL OF MOTION TO QUASH
A. Effect of Notice of Appeal and Motion for New Trial
In his first issue, Appellant argues that the trial court erred by denying his
motion to quash the State’s motion to revoke community supervision because the
judgment on which the community supervision was based had been appealed.
In short, Appellant asserts that the terms of his community supervision did not
begin until after this court issued its mandate; therefore, his January 14, 2011
arrest and use of alcohol could not violate terms that were not in effect at that
time.
The State responds that Appellant’s waiver of appeal operated to begin the
terms of community supervision immediately on the date of the judgment—
4
January 7, 2011. Therefore, Appellant’s January 14, 2011 arrest and use of
alcohol violated the terms of the January 7, 2011 community-supervision
judgment, implicating the State’s right to seek revocation:
Appellant should not be allowed [to] avoid the consequences
of his actions by simply filing his post-waiver notice of appeal. If
allowed, there would be no need for a waiver in Texas cases where
a plea is reached. In fact, a holding that allows a [d]efendant to go
behind the waiver in this manner would simply delete the
requirement of a waiver in cases where a plea is reached. After all,
what is the point of a waiver, if you can waive your right to get the
plea in the first place, but not really waive your rights if you commit a
crime prior to the trial court’s plenary power expiring.
Accordingly, the question we are asked to decide is when the terms of a
community-supervision judgment take effect if the defendant violates the terms
while the trial court has plenary jurisdiction and before a notice of appeal or a
motion for new trial is filed. No one disputes that Appellant voluntarily pleaded
guilty and waived his right to appeal, which prevents him from appealing any
issue in the case without the consent of the trial court that was not raised in a
written pretrial motion. See Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.
App. 2003). Further, all parties agree that the terms and conditions of community
supervision are not in effect while a case is on appeal or during the pendency of
a motion for new trial. 2 See Ross v. State, 523 S.W.2d 402, 405 (Tex. Crim.
App. 1975); Humphries v. State, 261 S.W.3d 144, 145 (Tex. App.—San Antonio
2
We note that we are not asked to decide whether any violative actions by
Appellant during the pendency of his appeal or motion for new trial could have
been used as grounds to revoke his community supervision. Thus, we do not
address that issue.
5
2008, no pet.); McConnell v. State, 34 S.W.3d 27, 30 (Tex. App.—Tyler 2000, no
pet.). Here, however, Appellant violated the terms of his community supervision
before he filed either a notice of appeal or a motion for new trial and after the trial
court entered judgment stating that the community-supervision terms and
conditions started immediately. Appellant’s position, therefore, is that his post-
violation notice of appeal and motion for new trial retroactively acted as a
panacea for his violations, removing the State’s power to revoke because the
post-sentence violations occurred during the trial court’s plenary jurisdiction.
Appellant’s motion for new trial was filed “in the interest of justice and
because the verdict was contrary to the law and the evidence.” This is not the
situation the dissent describes where the “defendant must file a motion for new
trial to complain of conditions of community supervision, involuntariness of a
negotiated plea, or ineffective assistance of counsel or that the punishment is
infirm.” 3 Appellant filed his motion for new trial after filing his notice of appeal.
The motion for new trial was never presented to the court as required by rule
21.6 and was overruled by operation of law on March 23, 2011 (75 days after the
January 7 judgment was imposed). See Tex. R. App. P. 21.6, 21.8(c).
3
We disagree with the dissent attributing a rationale that simply does not
exist in the majority opinion. The dissent concludes that “[t]he reason given is
that he cannot benefit from a rule of procedure that is meant to make pursuit of
certain complaints more onerous.” We have neither reasoned that a rule of
procedure requiring a motion for new trial exists to make pursuit of complaints
more onerous nor that Appellant should not prevail because he would benefit
from that same rule.
6
Therefore, Appellant’s motion for new trial served no purpose other than to
extend the trial court’s plenary power. See Tex. Code Crim. Proc. Ann. art. 44.02
(West 2006); Tex. R. App. P. 25.2(a)(2).
The cases relied on by Appellant to support his argument are
distinguishable. In those cases, the violations did not occur after the community
supervision was imposed and commenced pursuant to a plea bargain but before
a notice of appeal or motion for new trial was filed. Indeed, in most of the cases,
the violations occurred while an appeal or a motion for new trial was pending.
See, e.g., Ross, 523 S.W.2d at 405 (violation of community supervision occurred
after appeal dismissed but before mandate, which subjected defendant to
revocation); Smith v. State, 478 S.W.2d 518, 520 (Tex. Crim. App. 1972)
(community supervision imposed after bench trial did not begin until appeal finally
disposed of); Goodson v. State, 221 S.W.3d 303, 305 (Tex. App.—Fort Worth
2007, no pet.) (violation occurring after appellate mandate issued but before
defendant received notice of mandate could be used to revoke); Humphries, 261
S.W.3d at 144–45 (terms of community supervision imposed after jury verdict
could not be set during pendency of appeal); see also Milburn v. State, 201
S.W.3d 749, 751–52 (Tex. Crim. App. 2006) (holding because prior conviction
not final at the time sentence in subsequent offense entered, prior conviction
could not be used to deny community supervision in subsequent offense); Jordan
v. State, 36 S.W.3d 871, 877 (Tex. Crim. App. 2001) (same).
7
We recognize that blanket statements regarding the effect of an appeal or
a motion for new trial on the commencement of community supervision are
facially appealing as setting out a bright-line and easily-applied rule. See
McConathy v. State, 544 S.W.2d 666, 668 (Tex. Crim. App. 1976) (“[T]he terms
of probation commenced on the day the amended motion for new trial was
overruled by operation of law.”); 43B George E. Dix et al., Texas Practice Series:
Criminal Practice and Procedure § 55:137 (3d ed. 2011) (“[I]f a defendant is
placed on community supervision and files [a] notice of appeal, the community
supervision does not begin until the conclusion of the appellate process.”). But
such statements do not take into account the procedural facts present in the
instant case. In short, we must look at the state of the record at the time
Appellant violated his community-supervision terms and not after he filed his
notice of appeal or motion for new trial. On January 14, 2011 (the date of
Appellant’s violations), the trial court had stated in its judgment that Appellant’s
community-supervision terms had begun on January 7, 2011. Appellant had
waived his right to appeal and had not filed a motion for new trial. Thus, at the
time of the violations, the community-supervision terms were in effect, subjecting
Appellant to the possibility of revocation. As noted above, had Appellant violated
the terms of his community supervision while his notice of appeal or motion for
new trial were pending, we would be faced with a different issue and, possibly, a
different outcome. That is not the case at hand.
8
We acknowledge that several cases hold that community-supervision
terms and conditions do not “commence” until after the appellate mandate
issues. E.g., Goodson v. State, 221 S.W.3d 303, 305 (Tex. App.—Fort Worth
2007, no pet.); Cuellar v. State, 985 S.W.2d 656, 658 (Tex. App.—Houston [1st
Dist.] 1999, no pet.). However, these cases rely on a 1977 case from the court of
criminal appeals that is distinguishable. See Surety Corp. of Am. v. State, 550
S.W.2d 689, 690 (Tex. Crim. App. 1977). The appellant in Surety filed a notice of
appeal the same day that the trial court suspended the appellant’s sentence and
placed him on probation. Id. These facts are not similar to the instant case.
Here, Appellant waived his right to appeal at the time he was placed on
community supervision, and the trial court and Appellant, under the clear terms of
the plea-bargain agreement, both expected that the terms and conditions would
start at the time they were imposed. See McConnell, 34 S.W.3d at 30.
Additionally and unlike Surety, there was no trigger to alert the trial court or
Appellant that the terms and conditions would be suspended or stayed at the
time they were imposed and before Appellant violated those terms and
conditions.
A trial court has the jurisdiction and authority to punish violations of its
terms and conditions of community supervision. Id. Indeed, the community-
supervision statute places the responsibility to supervise community-supervision
defendants “wholly within the state courts.” Tex. Code Crim. Proc. Ann. art.
42.12, § 1 (West Supp. 2012). Further, the trial court may extend or modify the
9
terms and conditions “at any time.” Id. art. 42.12, §§ 21–22. In short, “[t]he
defendant is subject to the court’s control, not vice versa.” McConnell, 34
S.W.3d at 30. To require the trial court to automatically stay the commencement
of the terms and conditions when the defendant expressly waives his right to
appeal would interfere with the broad authority granted by these statutes. Cf.
Milburn v. State, 201 S.W.3d 749, 753 (Tex. Crim. App. 2006) (stating “the trial
judge should not be placed in the position of having to guess what a party is
going to do next” and holding non-final prior felony conviction could not be used
to deny community supervision following subsequent conviction).
We also recognize that the court of criminal appeals has suggested that a
timely notice of appeal filed after a defendant drives an automobile in violation of
an automatic suspension of his driver’s license “would have . . . retroactively
stayed [the automatic suspension] during the pendency of his appeal.” Jones v.
State, 77 S.W.3d 819, 824 n.18 (Tex. Crim. App. 2002). In Jones, however, the
court of criminal appeals interpreted a statute that automatically suspends a
defendant’s driver’s license upon “final conviction” of enumerated offenses. Tex.
Transp. Code Ann. § 521.372(a) (West 2013). The community-supervision
statute, on the other hand, does not require a “final conviction” before the trial
court’s authority to enforce its terms and conditions may begin. 4 Section
4
Likewise, this case is distinguishable from those cases that determine
whether a defendant was “finally convicted” in a previous community-supervision
judgment such that it may be used for punishment enhancement for a
subsequent offense. Tex. Penal Code Ann. § 12.42 (West Supp. 2012); see
10
521.372(a) is an automatic and administrative suspension that necessarily
requires a final conviction before administrative action. It does not implicate a
trial court’s power and responsibility to supervise a community-supervision
defendant under article 12.42.
We construe the rules of appellate procedure and the code of criminal
procedure by applying statutory-construction principles. See Tamez v. State, 11
S.W.3d 198, 203 (Tex. Crim. App. 2000) (citing Boykin v. State, 818 S.W.2d 782,
785–86 & n.4 (Tex. Crim. App. 1991)); State v. Hardy, 963 S.W.2d 516, 519
(Tex. Crim. App. 1997); Bradford v. State, 172 S.W.3d 1, 4–5 (Tex. App.—Fort
Worth 2005, no pet.). As such, we apply the plain meaning of the words
contained in the rule unless the plain meaning would lead to an absurd result.
See Mercier v. State, 96 S.W.3d 560, 562 (Tex. App.—Fort Worth 2002, pet.
struck). Appellant argues that the terms of probation were not in effect when he
committed the new DWI offense seven days after his plea and after the judgment
was signed and the sentence commenced. Approval of Appellant’s argument
would create an unworkable and absurd result.
The following hypotheticals illustrate the absurdity of Appellant’s requested
construction. In each, a defendant pleads guilty pursuant to a fully negotiated
plea bargain and does so knowingly, intelligently, and voluntarily, and, as a part
Fletcher v. State, 214 S.W.3d 5, 8–9 (Tex. Crim. App. 2007); Ex parte Langley,
833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Here, the State is not attempting
to use Appellant’s January 7, 2011 community-supervision judgment to enhance
his punishment for a subsequent offense under section 12.42.
11
of that plea-bargained exchange, the defendant waives his right to appeal. In the
first hypothetical, the defendant remains incarcerated until the day he pleads
guilty to assault for an act of violence perpetrated against his spouse. In
exchange for his voluntary guilty plea, the State recommends community
supervision. One of its terms is that the defendant have no contact with his
spouse, either in person or by any form of written or verbal communication. The
court accepts the plea-bargain agreement and releases the defendant from jail
with the mutual expectation that all terms and conditions of community
supervision became effective on the day of the plea. The next day the defendant
goes to his stepson’s sporting event and sits next to his spouse; the following
day, he shows up in line behind her at the grocery store; and the day after,
watches her from his car, which is parked next to hers at her place of
employment, as she retrieves a non-threatening note he had slipped under her
windshield wiper. His spouse spots him at all times of the day and night driving
on her street and he continues to appear at every public place she visits. The
defendant’s behavior continues for 28 days and on the 29th day after his plea, he
files a motion for new trial.
In the second hypothetical, the defendant, out of jail on a cash bond,
pleads guilty pursuant to a plea-bargain agreement to felony possession of a
controlled substance. The court, once again, approves the plea-bargain
agreement and sentences the defendant to community supervision. The terms
and conditions of his community supervision include remaining in Texas and
12
abstaining from the use of marijuana or any controlled substance. The defendant
is discharged from his bond and receives his cash bond back. The next day, he
travels to Washington, where he remains and avails himself of the laws of that
state, which allow him to smoke marijuana on a daily basis. On day 29 after his
plea and sentence, the defendant files a motion for new trial.
If the law is interpreted as Appellant and the dissent argue, then the filing
of the motion for new trial in each of these cases retroactively stamps a “King’s
X” on these clear and intentional violations of the terms and conditions of
community supervision and eviscerates the trial court’s power to enforce its
order. Not only would Appellant’s position forgive all these past violations, but
the defendants in our hypotheticals would have free reign to continue these
transgressions for up to 75 days after their community-supervision sentences are
imposed. 5
Once a trial court declares it will accept a plea agreement and “binds itself
to the terms, both the defendant and the prosecutor are entitled to the benefit of
the agreement. At the same time, both the defendant and the prosecutor are
also bound to uphold their ends of the bargain.” State v. Moore, 240 S.W.3d
248, 251 (Tex. Crim. App. 2007) (citing Ex parte Williams, 637 S.W.2d 943, 947
(Tex. Crim. App. 1982), cert. denied sub nom. Williams v. Texas, 462 U.S. 1108
5
“The court must rule on a motion for new trial within 75 days after
imposing or suspending sentence in open court.” Tex. R. App. P. 21.8(a). A
motion not ruled on by written order within this 75-day period is “deemed denied.”
Tex. R. App. P. 21.8(c).
13
(1983)). 6 In each of our hypotheticals, the State stood before the court and
agreed to the terms and conditions, thereby compelling the trial court to order the
defendant released from jail or discharged from bond based on the mutual
agreements. The State upheld its end of the bargain, yet the defendant did not.
The absurdity lies in the defendant’s ability to display such disrespect and disdain
for the court and yet wipe clean his past violations and get an extended
opportunity to continue his conduct. The defendant reaped the benefits of the
plea bargain and wishes this court to sanction his manipulation of the system
when the deal worked to his detriment—when he was arrested for committing a
new offense. Under Appellant’s reasoning, a trial court that approves a plea-
bargain agreement must bestow the benefits of the agreement upon the
defendant but has no authority to enforce its order for at least 30 days. 7
Accordingly, we conclude that Appellant’s community-supervision terms
were in effect at the time he violated them and his subsequent (yet timely) notice
of appeal and motion for new trial were ineffective to retroactively act as a cure
for those violations. See McConnell, 34 S.W.3d at 30 (“We hold that prior to the
6
Appellant’s proposed result arguably would likewise eradicate any
compliant actions that a defendant had performed before filing a motion for new
trial such as community-service hours performed or fines paid.
7
This interpretation of the law would obligate a trial court to release a
defendant placed on community supervision and risk that the defendant will
commit a catastrophic violation—which is what a community-supervision order is
designed to protect against—during the trial court’s plenary power for which there
would be no remedy.
14
filing of a motion for new trial, the trial court retains jurisdiction and has the power
to exercise its authority to punish violations of its conditions of community
supervision. To hold otherwise would permit a criminal defendant to manipulate
the system to its manifest detriment.”) We overrule issue one.
B. Effect of Post-Mandate and Nunc-Pro-Tunc Judgments
In his second issue, Appellant contends that the State’s motion to revoke
should have been quashed because the post-mandate and nunc-pro-tunc
judgments provided that the community-supervision terms “commenced” on June
22, 2011, which was after his January 14, 2011 arrest. Appellant extrapolates
that these post-violation judgments retroactively delayed the commencement of
his community supervision.
As with his first issue, Appellant’s argument facially appears to have merit.
After all, a violation that occurs before community supervision was in effect
cannot support revocation. But, once again, the unique procedural posture of
this case requires a different result. At the time of Appellant’s violation, the
judgment stated his community supervision commenced seven days before the
violation. We conclude that the post-mandate judgments did not alter what
occurred before they were entered. 8
8
As the State points out, the trial court’s “policy and procedure following a
properly appealed verdict is to enter a nunc pro tunc judgment detailing the date
on which the Defendant’s sentence is to commence.” In this case, such
procedure was ill-advised because the trial court also concluded that the motion
for new trial and notice of appeal were ineffective to change the commencement
15
III. MOTION TO SUPPRESS
Appellant argues that the evidence obtained after the officer asked him to
pull out of the drive-through lane should have been suppressed because the
initial call regarding the silver truck was unconfirmed and because the officer did
not have reasonable suspicion that Appellant was involved in criminal activity or
probable cause to arrest him.
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). 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. 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).
On January 14, 2011, Officer Seth Martin was dispatched to a
Whataburger because “[t]here was a reported driver who was supposed to be
of community supervision; thus, the commencement date should have remained
unchanged.
16
passed out behind the wheel in a silver pickup truck in the drive through.” When
Officer Martin arrived, he saw a silver truck stuck in the drive-through lane
because it had rolled into a curb. Officer Martin parked his car and approached
the truck on foot. The driver, later identified as Appellant, had his window rolled
down with the engine running and was talking to someone outside his truck.
Officer Martin asked Appellant for identification and asked him to back up to
move his truck out of the drive-through lane. Appellant complied, parked, and
got out of his truck to talk to Officer Martin. Officer Martin noticed that Appellant’s
balance was “uneasy” and smelled alcohol on his breath. Officer Martin
conducted a partial horizontal-gaze-nystagmus test on Appellant, which he failed.
Appellant refused to take any further field-sobriety tests. Officer Martin asked
Appellant if he had been drinking, and Appellant admitted he had had two beers
at the bar across the street from the Whataburger. Officer Martin arrested
Appellant for driving while intoxicated based on “the positioning of [Appellant’s]
vehicle in the drive through, . . . what had been reported, his demeanor, the
heavy smell of alcohol on his breath, [and] his inability to maintain his balance.”
There are three 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. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App.
2011). The State argues that because the encounter between Appellant and
Officer Martin was consensual, there was no need for a showing of reasonable
17
suspicion. See State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011)
(holding consensual police-citizen encounters do not implicate the Fourth
Amendment). Indeed, a consensual encounter will not trigger the Fourth
Amendment “unless it loses its consensual nature.” Florida v. Bostick, 501 U.S.
429, 434, 111 S. Ct. 2382, 2386 (1991).
In determining whether an interaction between police officers and a citizen
is a consensual encounter, we must look at the totality of the circumstances,
which includes the officer’s conduct as well as the setting in which the interaction
takes place. Crain v. State, 315 S.W.3d 43, 51 (Tex. Crim. App. 2010). This
encounter occurred in a public place and the evidence shows no actual use of
physical force, threatening language or tone, or the display of a weapon by the
single officer present. See United States v. Mendenhall, 446 U.S. 544, 554–55,
100 S. Ct. 1870, 1877–78 (1980). Officer Martin approached Appellant on foot
and did not force Appellant to stop or roll down his window. Officer Martin merely
asked Appellant for identification and to move his car. See Castleberry, 332
S.W.3d at 466 (stating officer’s simple request for identification “does not negate
the consensual nature of the encounter”).
In this case, the totality of the circumstances, viewed in the light most
favorable to the trial court’s ruling, shows that the encounter was consensual
and, thus, not subject to the requirements of the Fourth Amendment. 9 Once
9
Appellant’s arguments that the information given to Officer Martin was
insufficient to show Appellant was the subject of the anonymous call are
18
Officer Martin performed the partial field sobriety test and had the benefit of all
his observations from the initial voluntary encounter forward, he had sufficient
probable cause to arrest Appellant for driving while intoxicated. We overrule
Appellant’s third issue. 10
IV. CONCLUSION
We conclude that Appellant’s violations of his community-supervision
terms, occurring after his negotiated sentence of community supervision
commenced but before Appellant timely filed a notice of appeal and motion for
new trial, subjected him to possible revocation. The trial court’s post-mandate
and nunc-pro-tunc judgments do not change the effect of Appellant’s post-
sentence violations occurring during the trial court’s plenary jurisdiction and while
the terms were in effect. Finally, the trial court correctly denied Appellant’s
motion to suppress the evidence regarding his January 14 intoxication because
the encounter was consensual and, thus, did not implicate the Fourth
Amendment. We affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
unpersuasive. See Woodard, 341 S.W.3d at 413 (holding officer did not need
specific information from anonymous tip because stop and inquiry were
consensual).
10
Even if the encounter was not consensual, the evidence shows
articulable facts supporting reasonable suspicion to justify a detention. See
Derichsweiler v. State, 348 S.W.3d 906, 909–12, 916–17 (Tex. Crim. App.), cert.
denied, 132 S. Ct. 150 (2011).
19
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: August 22, 2013
20