                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-17-00214-CR


                           TROY LEE APPLIN, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 42nd District Court
                                    Taylor County, Texas
              Trial Court No. 26378A, Honorable Thomas M. Wheeler, Presiding

                                    August 22, 2018

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Troy Lee Applin appeals his conviction by jury of the second-degree

felony offense of possession of phencyclidine1 and the resulting sentence of eight years

of imprisonment. Through one issue, appellant contends the trial court erred by denying

his motion to suppress. We will affirm.




      1   TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2016).
                                        Background


         The indictment charged appellant with possession of a controlled substance,

phencyclidine, in an amount less than one gram, and set forth appellant’s two prior felony

convictions for possession of cocaine. Before trial, appellant filed a motion to suppress

seeking exclusion of physical and testimonial evidence. The trial court held a hearing on

the motion.


         At the hearing, an Abilene Police Department detective, Joel Harris, testified. He

said he was working an “extra duty” security shift at the Mall of Abilene when shoppers

reported a disturbance in the parking lot. The report was of a man “screaming, yelling,

punching cars, even jumping off of planters and kind of landing on his head, stuff like

that.”


         Harris and other members of the mall security team responded, finding appellant

“lying in the roadway of the parking lot just off the curb” in front of a restaurant. Harris

saw “blood in several places” on appellant but could not determine his specific injury.

Harris told the court appellant “was lying down, breathing heavily, appeared to be

sweating profusely, was yelling something. Most of it, I did not understand. I recall him

yelling a name, Sheldon, I think, a couple of times.” Harris described appellant as being

“in some kind of crisis.” Officers called an ambulance for appellant because they were

unable to determine appellant’s injuries. Harris testified appellant “appeared to be under

the influence of some kind of substance, narcotic.”


         While they waited for the ambulance, Harris stated, appellant appeared to be

upset, continued yelling, got up and started walking toward the mall. Concerned for


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appellant’s safety and that of shoppers, the officers went to appellant to detain him and

“told him to come back and sit down. He refused.” Harris and another officer tried to

detain or subdue appellant, who began to “actively resist.” Harris continued, describing

the efforts the officers undertook to subdue and handcuff appellant.


       During cross-examination, Harris said that at the time, he believed appellant might

have committed “three possible offenses: One was obviously public intoxication; we also

had disorderly conduct; and based on our initial reports of him punching cars, I didn’t

know if we possibly had a criminal mischief, reckless damage, or assault as well.” As the

officers sat appellant down on a planter to wait for the ambulance, Harris said, appellant

continued to “yell things that were incomprehensible.”


       Officer Kurt Thomas testified also, telling the court he arrived at the mall to see

appellant “active[ly] resisting when the officers were trying to restrain him.” Thomas

assisted the other officers. He also said appellant could have been arrested for disorderly

conduct and public intoxication.


       Appellant testified at the hearing, giving the court a somewhat different version of

the events. He told the court he and his cousin were at the mall shopping. He stated that

when officers arrived, he “was sitting on a block fixture right outside the door of the mall

entrance.” He testified that two officers approached him and asked him for identification.

He stated he had an injury to his hand at the time and was wearing a hoodie. He said

the officers were asking him “several different types of questions.” He tried to reach for

his wallet but apparently took too long because the officers “rushed” appellant to the

ground. Appellant denied yelling and screaming. He did admit he “struck the ground”



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with his hand before the officers arrived because he was “going through emotions.”

Appellant testified he was handcuffed and raised to a “position of on [his] knees, and at

that time [he] was searched.” He told the court he had not been told he was arrested and

did not give the officers consent to search him.


       Thomas testified he got inside the ambulance with appellant, and checked

appellant’s pockets to “make sure that he didn’t have any weapons on him.” In appellant’s

pockets Thomas discovered the evidence that led to appellant’s prosecution.


       The trial court denied appellant’s motion to suppress the evidence. Thereafter the

cause proceeded to jury trial and appellant was found guilty as charged. Punishment was

assessed as noted and this appeal followed.


                                           Analysis


       In his sole issue on appeal, appellant limits his argument to a contention the

officers did not have reasonable suspicion to detain him. He argues his “actions of

screaming and yelling” in the mall parking lot were entirely innocent conduct unrelated to

criminal activity.


       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Gonzales v. State, No. 07-15-00039-CR, 2015 Tex. App. LEXIS 12177, at *4-

5 (Tex. App.—Amarillo Nov. 30, 2015, pet. dism’d) (mem. op., not designated for

publication) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). We

give almost total deference to the trial court’s determination of historical facts and then

review de novo the trial court’s application of the law to those facts. Id. (citations omitted).

If, as here, the trial court did not make explicit findings of fact, we review the evidence in

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a light most favorable to the trial court’s ruling and assume it made implicit findings of fact

supporting its ruling. Id. (citing Carmouche, 10 S.W.3d at 327-28; State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (party prevailing in trial court is afforded

“strongest legitimate view of the evidence and all reasonable inferences”)). We review

de novo questions of law and mixed questions of law and fact that do not depend on

evaluation of credibility and demeanor. Id. (citing Fienen v. State, 390 S.W.3d 328, 335

(Tex. Crim. App. 2012)).


       At the suppression hearing the trial judge is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Gonzales, 2015 Tex. App. LEXIS

12177, at *5 (citing St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007)).

The trial court is able to observe the demeanor and appearance of the witnesses and is,

therefore, better positioned to determine witness credibility than an appellate court which

may only read the testimony from the record. Id. (citing Villarreal v. State, 935 S.W.2d

134, 138 (Tex. Crim. App. 1996)). We will sustain the trial court’s suppression ruling if it

is reasonably supported by the record and is correct on any theory of law applicable to

the case. Id. (citation omitted). We may not substitute our judgment for that of the trial

court; rather, we will affirm its ruling if it falls within the zone of reasonable disagreement.

Id. (citation omitted).


       There is no dispute that the officers’ interaction with appellant escalated at a point

from a mere encounter to a detention. See Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.

App. 2010) (distinguishing encounter from investigative detention). Harris testified the

officers detained appellant when he attempted to walk toward the mall entrance while

they awaited the ambulance. There also is no dispute the detention led eventually to the

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search that produced the evidence appellant sought to suppress.            Our focus is on

appellant’s argument his initial detention was illegal because officers lacked reasonable

suspicion to detain him.


       Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude a particular person actually is, has been, or soon will be engaged in criminal

activity. Crain, 315 S.W.3d at 52; Miller v. State, No. 05-11-00282-CR, 2012 Tex. App.

LEXIS 5655, at *9-10 (Tex. App.—Dallas, July 16, 2012, no pet.) (mem. op., not

designated for publication).    An officer is justified in briefly detaining a person for

investigative purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity “may be afoot,” even if the officer lacks probable cause for an

arrest. Miller, 2012 Tex. App. LEXIS 5655, at *9 (citations omitted). Whether reasonable

suspicion exists depends on the content of the information known to the officer as well as

its degree of reliability. Id. at *10 (citation omitted). The State is not required, however,

to establish a crime actually occurred prior to the investigatory detention. Id. (citation

omitted).


       “Intoxicated” means “not having the normal use of mental or physical faculties by

reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug,

a combination of two or more of those substances, or any other substance into the body.”

Id. at *11-12 (citing TEX. PENAL CODE ANN. § 49.01(2)(A)).          The offense of public

intoxication occurs when “the person appears in a public place while intoxicated to the

degree that the person may endanger the person or another.” Id. (citing TEX. PENAL CODE

ANN. § 49.02(a)). A public place includes the common areas of office buildings and shops.

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TEX. PENAL CODE ANN. § 1.07(40) (“public place” means any place to which the public or

a substantial group of the public has access and includes streets and common areas of

shops). Under the Penal Code definition, a mall parking lot open to the public is a public

place. Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex. App.—San Antonio 1994, pet.

ref’d). An intoxicated person can pose a danger regardless whether he has access to a

vehicle. Miller, 2012 Tex. App. LEXIS 5655, at *11 (citation omitted). The intoxicated

individual need not commit any dangerous acts in the presence of an officer in order to

pose a sufficient danger to himself or others. Id. (citation omitted). It is enough if the

officer observes a degree of intoxication indicating the individual poses a potential danger

to himself or others. Id. (citation omitted).


       Here, in its role as sole judge of the credibility of testifying witnesses, the trial court

could have believed the officers’ version of events over that reflected by appellant’s

testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (in its role

as factfinder, the trial court is free to believe some, all, or none of a witness’s testimony).

Detective Harris told the court shoppers reported appellant’s conduct was causing a

disturbance in the mall’s parking lot, and Harris found appellant lying in the roadway.

Appellant was yelling, and appeared to Harris to be “in some kind of crisis.” Appellant’s

conduct of lying in the roadway, yelling incomprehensively and continuing the behavior

after being approached by officers, especially when accompanied by his heavy breathing,

profuse sweating and bloody condition, gave rise to a reasonable inference that he lacked

the normal use of his mental or physical faculties.


       To Harris, appellant “appeared to be under the influence of some kind of

substance, narcotic.” The officers observed appellant get up while he continued to yell

                                                7
and begin walking toward the mall.          The court could have considered the officers’

testimony to be corroborated by appellant’s admission he “struck the ground” with his

hand before the officers arrived because he was “going through emotions.” The testimony

contained specific facts that, combined with rational inferences from those facts,

permitted the court to agree with the officers they had a reasonable suspicion appellant

was appearing in a public place while intoxicated to the degree he posed a danger to

himself or others.


       We do not rely for our conclusion only on Harris’s subjective impression that

appellant “appeared to be” under the influence of a substance. See Castro v. State, 227

S.W.3d 737, 742 (Tex. Crim. App. 2007) (intoxication may be a subjective determination

by officer; officer’s subjective opinion is not a substitute for specific, articulable facts). The

officers reasonably could have suspected that appellant’s conduct and condition were the

result of intoxication. Miller, 2012 Tex. App. LEXIS 5655, at *16; see Leming v. State,

493 S.W.3d 552, 564-65 (Tex. Crim. App. 2016). That the officers also reasonably could

have inferred that appellant’s actions resulted from other causes such as mental illness

does not diminish the objective reasonableness of a suspicion of intoxication. See

Leming, 493 S.W.3d at 565 (reasonable suspicion need not rule out the possibility of

innocent conduct) (citations omitted).


       Viewing the record under the applicable standard of review, we see no abuse of

discretion in the trial court’s denial of appellant’s motion to suppress.           We resolve

appellant’s sole issue against him.




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                                       Conclusion


      Having overruled appellant’s single issue, we affirm the judgment of the trial court.




                                                       James T. Campbell
                                                          Justice


Do not publish.




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