Opinion filed August 16, 2012




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00367-CR
                                         __________

                     ANDREW TIMOTHY MARTINEZ, Appellant
                                    V.
                          STATE OF TEXAS, Appellee


                            On Appeal from the 39th District Court
                                   Haskell County, Texas
                                 Trial Court Cause No. 6135


                             MEMORANDUM OPINION
          Andrew Timothy Martinez pleaded guilty to the offense of felony driving while
intoxicated. Pursuant to a plea bargain agreement, the trial court sentenced him to confinement
in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty
years. In three issues, appellant challenges the trial court’s ruling on his motion to suppress. We
affirm.
                                        Background Facts
          The trial court entered written findings of fact and conclusions of law after denying
appellant’s motion to suppress. They read as follows:
             1. On or about April 10, 2006, Tom Bassett, Chief of Police of Haskell,
                Texas, was on patrol in the City of Haskell.
2. At approximately 7:00 a.m., Officer Bassett was flagged down by
   Michelle Santillan.

3. Officer Bassett had known Michelle Santillan for a number of years.
   Officer Bassett had been provided information from Santillan in the past
   that proved to be reliable. Officer Bassett was aware that Santillan had
   connections to law enforcement in that she worked part time for a law
   enforcement agency.

4. Michelle Santillan informed Officer Bassett that Andrew Martinez had
   come to her house that morning; that Andrew Martinez was in town for a
   court hearing; that Andrew Martinez had been argumentative at her house;
   and that Andrew Martinez was intoxicated. Santillan informed Bassett
   that Martinez was driving a light blue 4-door Jeep Cherokee.

5. Officer Bassett waited in the vicinity of Santillan’s home to see if
   Martinez returned. Officer Bassett was concerned about a possible
   domestic disturbance at Santillan’s house if Martinez returned.

6. While waiting near Santillan’s house, a vehicle matching the description
   given to him by Santillan drove up and stopped at Santillan’s house.

7. After the vehicle stopped, Bassett pulled alongside the vehicle, stopped
   and activated his emergency lights.

8. Officer Bassett identified the individual driving the vehicle as Andrew
   Timothy Martinez.

9. Officer Bassett smelled alcoholic beverage upon the person of Andrew
   Martinez, and observed Martinez to have bloodshot eyes.

10. Officer Bassett conducted an investigation, concluded Martinez was
    intoxicated and arrested Martinez for Driving While Intoxicated.

                          CONCLUSIONS OF LAW

1. Since Martinez stopped voluntarily at Santillan’s residence, Officer
   Bassett did not initiate a traffic stop. By stopping in front of a residence
   on a public street, Officer Bassett could lawfully approach Martinez; thus,
   the contact between Bassett and Martinez constituted a voluntary
   encounter, that does not implicate the 4th Amendment of the U.S.
   Constitution or any provisions of the Constitution of the State of Texas.

2. Even if Officer Bassett initiated a stop and detained Martinez; Officer
   Bassett had reasonable suspicion to believe Martinez was driving while
   intoxicated, because he had been given information from a source he has

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               known for many years, that he believed to be credible, and that had
               provided him reliable information in the past.

           3. Furthermore, Officer Bassett had received information that Martinez had
              been arguing at Santillan’s residence. Martinez returned to that residence.
              Officer Bassett would have been justified in a detention of Martinez for
              community caretaking.

Appellant separately challenges the trial court’s conclusions of law in three issues.
                                        Standard of Review
       We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011); Oles v. State, 993 S.W.2d 103, 106
(Tex. Crim. App. 1999). In reviewing a motion to suppress, we apply a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310
S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to the trial
court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial court is the sole
trier of fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Id.; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). Second, we
review de novo the trial court’s application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra,
310 S.W.3d at 447. We also review a trial court’s legal rulings de novo. State v. Iduarte, 268
S.W.3d 544, 548–49 (Tex. Crim. App. 2008).
       Where, as here, the trial judge makes express findings of fact, we must first determine
whether the evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those findings. Valtierra, 310 S.W.3d at 447; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We will sustain the trial court’s ruling if it is reasonably supported by the
record and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447–
48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
                        Consensual Encounter vs. Investigatory Detention
       In his first issue, appellant asserts that the interaction between Officer Thomas Paul
Bassett Jr. and appellant constituted a detention rather than a consensual encounter. The State
argues that Officer Bassett initiated a consensual encounter, which then gave rise to reasonable
suspicion to support an investigatory detention.




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         There are three different types of interactions between citizens and law enforcement
officers: (1) consensual encounters; (2) investigatory detentions; and (3) arrests. State v.
Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing Florida v. Bostick, 501 U.S.
429, 434 (1991); Terry v. Ohio, 392 U.S. 1, 30–31 (1968); and Gerstein v. Pugh, 420 U.S. 103,
111–12 (1975)). Consensual encounters do not implicate Fourth Amendment protections. Id. at
411. Police officers are free to stop and request information from a citizen with no justification.
Id. A citizen may terminate such a consensual encounter at will. Id. A citizen’s acquiescence to
an officer’s request does not transform a consensual encounter into a detention or seizure, even if
the officer does not communicate to the citizen that the request for information may be ignored.
Id.
         We consider the totality of the circumstances in determining whether a reasonable person
in the defendant’s shoes would have felt free to ignore the request or terminate the interaction.
Id. There is no bright-line test. Id.; State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim.
App. 2008).          We consider the surrounding circumstances, including the time and place.
Woodard, 341 S.W.3d at 410–11. The officer’s conduct is the most important factor in deciding
whether an encounter between a citizen and the police was consensual or a Fourth Amendment
seizure. Id. If a police officer through force or a showing of authority restrains a citizen’s
liberty, the encounter is not consensual and has become either a detention or an arrest, requiring
either reasonable suspicion or probable cause, respectively. Id.
         As was the case in Woodard, we focus our analysis on the initial interaction between
appellant and Officer Bassett to determine if it constituted a consensual encounter. The events
that transpired afterwards are not relevant to our inquiry because Officer Bassett testified that he
smelled alcohol coming from the car and appellant after talking to him for “a short time.” As
noted previously, appellant had already stopped his car when Officer Bassett parked beside him.
Thus, Officer Bassett’s activation of his emergency lights did not cause appellant to stop his
vehicle. The stop occurred in daylight at approximately 7:00 a.m. Officer Bassett testified that
his patrol vehicle did not block appellant’s vehicle. In addition to the testimony presented at the
suppression hearing, an in-car video of the initial contact between appellant and Officer Bassett
was introduced into evidence; it corroborates the officer’s testimony.1 The in-car video further


         1
           Officer Bassett testified that the in-car video began recording when he activated his overhead lights and that that was
one of the reasons why he activated the overhead lights.

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reveals that Officer Bassett spoke to appellant in a calm, noncoercive tone in requesting to see
his driver’s license and insurance information.
       Based upon the totality of the circumstances and the conduct of Officer Bassett, we
conclude that the trial court did not abuse its discretion in determining that the initial interaction
constituted a consensual encounter. Examples of circumstances that might indicate a detention
has occurred would be the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, the blocking of appellant’s vehicle
with a police vehicle, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled. Crain v. State, 315 S.W.3d 43, 49–50 (Tex. Crim. App.
2010); Garcia-Cantu, 253 S.W.3d at 249. None of these facts occurred in this case. Appellant’s
first issue is overruled.    We need not consider appellant’s remaining issues because our
resolution of the first issue is dispositive of this appeal. Simply put, no justification is required
for an officer to request information from a citizen in a consensual encounter. Woodard, 341
S.W.3d at 411.
       Alternatively, we conclude that the information given by Santillan to Officer Bassett
provided him with reasonable suspicion to support an investigatory detention. As recently noted
by the Texas Court of Criminal Appeals in Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.
Crim. App. 2011):
               Under the Fourth Amendment, a warrantless detention of the person that
       amounts to less than a full-blown custodial arrest must be justified by a
       reasonable suspicion. A police officer has reasonable suspicion to detain if he has
       specific, articulable facts that, combined with rational inferences from those facts,
       would lead him reasonably to conclude that the person detained is, has been, or
       soon will be engaged in criminal activity. This standard is an objective one that
       disregards the actual subjective intent of the arresting officer and looks, instead, to
       whether there was an objectively justifiable basis for the detention. It also looks
       to the totality of the circumstances; those circumstances may all seem innocent
       enough in isolation, but if they combine to reasonably suggest the imminence of
       criminal conduct, an investigative detention is justified. “[T]he relevant inquiry is
       not whether particular conduct is innocent or criminal, but the degree of suspicion
       that attaches to particular noncriminal acts” (alteration in original, footnotes
       omitted).

The court held in Derichsweiler that information provided to police from a citizen-informant
who identifies himself and may be held to account for the accuracy and veracity of his report
may be regarded as reliable. 348 S.W.3d at 914–15. In such a scenario, the only question is

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whether the information that the known citizen-informant provides, viewed through the prism of
the detaining officer’s particular level of knowledge and experience, objectively supports a
reasonable suspicion to believe that criminal activity is afoot. Id. Santillan, a person who had
provided reliable information in the past, reported that appellant was intoxicated and that he had
been argumentative at her house. She also provided Officer Bassett with a description of the
vehicle that appellant was driving. This information constituted sufficient information to support
an investigative detention.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.



                                                             TERRY McCALL
                                                             JUSTICE


August 16, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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