             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00205-CR
      ___________________________

       THOMAS FALERO, Appellant

                     V.

           THE STATE OF TEXAS


   On Appeal from the 362nd District Court
           Denton County, Texas
       Trial Court No. F18-2033-362


Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
                         MEMORANDUM OPINION

                                  I. Introduction

      On May 14, 2018, Denton Police Officers Craig Fitzgearld1 and Jeff Laughlin

received an anonymous tip about narcotics activity in Room 10 at the Holiday Lodge

Hotel. They drove their unmarked vehicle to the hotel, a location well-known for

drug activity, and parked outside of Room 10. Less than five minutes after they

arrived, they saw three people that they recognized, including Appellant Thomas

Falero.

      When Officer Fitzgearld asked the trio if they had any drugs on them, Falero

replied that he had some marijuana. Officer Fitzgearld then asked him where it was,

and Falero began rummaging around inside an old white car. Officer Fitzgearld said

that because Falero’s movements were “kind of frantic and nervous,” he handcuffed

Falero, and then he and Officer Laughlin searched him. They found roughly 20

grams of methamphetamine in a baggie in Falero’s right pocket.

      Falero was indicted for possession with intent to deliver a controlled substance

in an amount of 4 grams or more but less than 200 grams, see Tex. Health & Safety

Code Ann. § 481.112, and he moved to suppress the evidence, complaining that the




      1
        Officer Fitzgearld retired from the Denton Police Department after 32 years
of service, and at the time of the trial, he was working for the Denton County
Sheriff’s Department as a warrant deputy.


                                          2
uncorroborated, anonymous tip did not provide the reasonable suspicion necessary to

detain him. The trial court denied his motion after a hearing.

      During the charge conference, Falero sought an Article 38.23 instruction

“regarding the legality of [his] original detention and search” and objected to the

inclusion in the jury charge of the statement, “Methamphetamine is a controlled

substance,” complaining that it was an improper comment on the evidence. The trial

court overruled his objections. After the jury found Falero guilty, he pleaded true to

the enhancement allegations,2 the jury assessed his punishment at 30 years’

confinement, and the trial court entered judgment on the verdict.

      In three issues, Falero complains that the trial court erred by denying his

motion to suppress and by overruling his jury charge complaints. We affirm.

                                   II. Suppression

      In his third issue,3 Falero argues that the trial court erred by denying his motion

to suppress.


      2
        Falero’s indictment contained enhancement paragraphs alleging prior drug-
related felony convictions.
      3
       If the State’s primary evidence in support of Falero’s conviction—the
methamphetamine—should have been suppressed, then Falero would be entitled to a
reversal of the trial court’s judgment; thus, we address his third issue first. Compare
Love v. State, 543 S.W.3d 835, 857–58 (Tex. Crim. App. 2016) (concluding after
constitutional harmless error analysis that improperly-admitted evidence’s probable
impact was great but remanding for new trial in murder case in which there was other
evidence that could support conviction), with Arteaga v. State, 521 S.W.3d 329, 340–41
(Tex. Crim. App. 2017) (stating that the remedy for harmful jury charge error is
reversal and remand unless the harm can be remedied by reforming the judgment).

                                           3
A. Suppression Hearing

       At the beginning of the hearing, the State stipulated that the search of Falero’s

person was warrantless, and the parties agreed that the dispute focused on the initial

encounter and pat-down.

       Officer Fitzgearld, the only witness who testified during the suppression

hearing, stated that on May 14, 2018, he and Officer Laughlin had received a Crime

Stopper’s tip via email about narcotics activities in Room 10 at the Holiday Lodge

Hotel, an area that he knew was frequented by drug sellers and users. The tip just

stated the location; it did not state how many people were involved or their races or

sexes, and it did not provide any clothing descriptions of those involved or

descriptions of their vehicles.

       The officers went to the hotel and observed Room 10 from their unmarked

vehicle in the parking lot. They had been there for “maybe five minutes” when they

saw Falero, Nancy Alvarado, and Josh Reed—all three of whom were familiar to the

officers, and vice versa4—come out of Room 10. The officers stepped out of the

vehicle and made contact with the trio by walking up to them and telling them that

they had received a tip about narcotics activity. On cross-examination, when asked

what words he used to get Falero to stop and speak with him, Officer Fitzgearld



      Officer Fitzgearld, having been a police officer for 32 years in Denton,
       4

acknowledged that he was very well known by the people in the narcotics community.


                                           4
replied, “I don’t recall. I’ve known him for a long time, and usually I just walk up to

him and have a conversation with him.”

      After Falero told Officer Fitzgearld that he had some marijuana, Falero started

frantically rummaging through his car. Officer Fitzgearld asked Falero to get out of

the car because Falero’s actions—which could have been to retrieve something from

or to place something inside of the vehicle—were making the officer nervous.

Officer Fitzgearld said that at that point, he already had probable cause to search the

vehicle and to search Falero because of his admission that he had marijuana.

      Officer Fitzgearld turned on his body camera around the time that Falero re-

emerged from the car. The trial court viewed the body camera video. The body

camera video shows the open driver’s side door of a white four-door vehicle and

Officer Fitzgearld quickly frisking Falero’s left pocket before Falero turns to face the

vehicle and to put his hands on the roof. Officer Fitzgearld pats down Falero’s left

side again before putting Falero in handcuffs, telling him to relax, that he is just going

to detain him because Falero is making him nervous. While he fastens the handcuffs

on Falero, Officer Fitzgearld asks, “Where’s the weed at, you said?” Falero replies,

“Man, I thought it was in the car.” Officer Fitzgearld patted down Falero’s left side,

and Officer Laughlin patted down Falero’s right side and found the

methamphetamine. The trial court denied Falero’s motion to suppress.




                                            5
B. Standard of Review and Applicable Law

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to

a trial court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on evaluating credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      There are three types of police–citizen interactions: (1) consensual encounters,

which do not implicate the Fourth Amendment; (2) investigative detentions, which

are Fourth Amendment seizures of limited scope and duration that must be

supported by a reasonable suspicion of criminal activity; and (3) arrests, the most

intrusive of Fourth Amendment seizures, which are reasonable only if supported by

probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013)

      With regard to consensual encounters, police officers are as free as any other

citizen to approach and ask for information or cooperation, and while such

consensual encounters may be uncomfortable, they are not Fourth Amendment

seizures. Id. No bright-line rule governs when a consensual encounter becomes a

detention. Id. Rather, courts must take into account the interaction’s totality of the

circumstances to decide whether a reasonable person would have felt free to ignore

                                          6
the police officer’s request or to terminate the consensual encounter. Id. If ignoring

the request or terminating the encounter is an option, then no Fourth Amendment

seizure has occurred. Id. at 668. But if an officer through force or a show of

authority succeeds in restraining a citizen in his liberty, the encounter is no longer

consensual; it is a Fourth Amendment detention or arrest, subject to Fourth

Amendment scrutiny. Id. We review de novo the question of whether the particular

facts show that a consensual encounter has evolved into a detention. Id.

      An officer conducts a lawful temporary detention when he reasonably suspects

that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim.

App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable

suspicion exists when, based on the totality of the circumstances, the officer has

specific, articulable facts that, when combined with rational inferences from those

facts, would lead him to reasonably conclude that a particular person is, has been, or

soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an

objective standard that disregards the detaining officer’s subjective intent and looks

solely to whether the officer has an objective basis for the stop. Id.

C. Application

      Falero argues that the Fourth Amendment’s reasonable-suspicion standard

required the officers to have more information than a location-only anonymous tip in

order to detain him. However, he ignores the fact that although an anonymous tip is

what initially led the officers to the hotel, the trial court could have found that his

                                            7
initial conversation with the officers, during which he told them that he had

marijuana, was a consensual encounter. See Wade, 422 S.W.3d at 667. The trial court

was entitled to find credible Officer Fitzgearld’s testimony that he and Falero knew

each other and that they were accustomed to speaking with each other. See id.

      When Falero, who was already known to Officer Fitzgearld, told the officers

that he possessed marijuana, a controlled substance, in an area known to be

frequented by drug users and sellers, this provided the officers with—if not probable

cause to arrest him for committing an offense in their presence5—reasonable

suspicion that Falero was, had been, or soon would be engaged in criminal activity.

See Ford, 158 S.W.3d at 492. Deferring to the trial court’s evaluation of Officer

Fitzgearld’s credibility and the body camera video, we conclude that the trial court did

not err by denying Falero’s motion to suppress, and we overrule Falero’s third issue.

                                  III. Jury Charge

      A jury charge’s purpose is to inform the jury of the law applicable to the case

and to guide them in its application. Beltran De La Torre v. State, 583 S.W.3d 613, 617

(Tex. Crim. App. 2019). In reviewing a jury charge, we first determine whether error

occurred; if not, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

App. 2012).


      5
         Compare Tex. Health & Safety Code Ann. § 481.121 (marijuana possession),
with id. § 481.111(e) (exemption to section 481.121 regarding low-THC cannabis under
certain circumstances, added by the Legislature in 2015).


                                           8
A. Article 38.23 Instruction

      Falero argues in his first issue that “whether he was in the room identified in

the tip[] was a contested issue at trial on which there were two distinct sets of

testimony.” He complains that the trial court thus erred by refusing to give an Article

38.23 instruction on this issue during the trial’s guilt-innocence phase. The State

replies that, among other reasons, any such contested fact issue was not material to

the lawfulness of Falero’s detention because his initial encounter with the police was

consensual.

      Article 38.23(a) is a fact-specific exclusionary-rule instruction, and a defendant’s

right to that instruction is limited to disputed issues of fact that are material to his

claim of a constitutional or statutory violation that would render evidence

inadmissible. Oursbourn v. State, 259 S.W.3d 159, 173–74, 177 (Tex. Crim. App. 2008);

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); see Tex. Code Crim.

Proc. Ann. art. 38.23(a). A defendant must establish the following for an Article

38.23(a) instruction: (1) the evidence heard by the jury raises a fact issue; (2) the

evidence on that fact is affirmatively contested; and (3) the contested factual issue is

material to the challenged conduct’s lawfulness in obtaining the evidence. Oursbourn,

259 S.W.3d at 177. If there is no disputed factual issue, the conduct’s legality is

determined by the trial court as a question of law. Madden, 242 S.W.3d at 510.




                                           9
      Although Falero contends that there was a factual dispute in the testimony

about his presence in Room 10,6 the basis for his detention, as set out above in our

suppression analysis, was his admission during the consensual encounter that he had

marijuana. See Wade, 422 S.W.3d at 669 (holding that appellant was not “seized”

under the Fourth Amendment until he complied with the order to get out of his truck

for a frisk). Accordingly, we conclude that the trial court did not err by deciding that

an Article 38.23(a) instruction was not the law applicable to the case as to the question

of Falero’s presence or absence in Room 10. We overrule Falero’s first issue.

B. Non-statutory Instruction

      In his second issue, Falero argues that the trial court impermissibly commented

on the evidence’s weight by including the non-statutory phrase “methamphetamine is

a controlled substance” in the jury charge. Falero complains that because “controlled

substance” is a statutory term of art with a specific definition, the trial court’s

instruction was erroneous both because it contained an improper comment on the

weight of the evidence and because it included an incorrect definition.

      While special, nonstatutory instructions generally have no place in the jury

charge, Morales v. State, 357 S.W.3d 1, 5 & n.15 (Tex. Crim. App. 2011), and harm can

result from an instruction that emphasizes a particular theory or the weight to be

      6
        Both Officer Fitzgearld and Officer Laughlin testified that they saw Falero and
the two others leave Room 10 at the Holiday Lodge. Falero testified, in contrast, that
he had just knocked on the door of Room 10 to get his car keys from Alvarado and
that he was trying to get into his car when he saw the officers come towards him.


                                           10
given to a particular piece of evidence, Barron v. State, 353 S.W.3d 879, 884 (Tex. Crim.

App. 2011), the trial court’s instruction here was neither nonstatutory nor harmful

because the Legislature has determined as a matter of law that methamphetamine is a

controlled substance. See Tex. Health & Safety Code Ann. § 481.002(5) (defining

“controlled substance” as “a substance . . . listed in . . . Penalty Group 1”), § 481.101

(“For the purpose of establishing criminal penalties for violations of this chapter,

controlled substances, including a material, compound, mixture, or preparation

containing the controlled substance, are divided into Penalty Groups 1 through 4.”),

§ 481.102(6) (listing methamphetamine as a substance in Penalty Group 1). Because

the Legislature has made that determination, the trial court’s statement, which merely

consolidated the pertinent statutory language, was permissible.7 Cf. Ouellette v. State,

353 S.W.3d 868, 870 (Tex. Crim. App. 2011) (“We have previously held that when

only a portion of the statutory definition is relevant to the elements of the offense,

giving the whole statutory definition may be error.”). We overrule Falero’s second

issue.

                                     IV. Conclusion

         Having overruled Falero’s three issues, we affirm the trial court’s judgment.




        As pointed out by the State, the fact question for the jury was whether the
         7

substance in Falero’s pocket was methamphetamine, not whether methamphetamine
is a controlled substance.


                                             11
                                 /s/ Bonnie Sudderth
                                 Bonnie Sudderth
                                 Chief Justice

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

Delivered: April 23, 2020




                            12
