                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00114-CR



         CHRISTOPHER WILKINS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                  Gregg County, Texas
               Trial Court No. 2017-2317




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                MEMORANDUM OPINION
       In a trial before the court, Christopher Wilkins was convicted of driving while intoxicated

(DWI). At trial, Wilkins filed a motion to suppress the State’s evidence on the basis that it was

obtained while he was being illegally detained in violation of the Fourth Amendment. The trial

court denied Wilkins’ motion, found him guilty, and sentenced him to serve 180 days in the county

jail. It also imposed a fine in the amount of $600.00. The trial court then suspended imposition

of Wilkins’ sentence and placed him on community supervision for a period of fifteen months.

       On appeal, Wilkins argues that the trial court erred in denying his motion to suppress. After

reviewing the record and applicable law, we find no error in the trial court’s ruling. We affirm the

trial court’s judgment.

I.     Standard of Review

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

review, giving almost total deference to the trial court’s determination of historical facts that turn

on credibility and demeanor, while reviewing de novo other application-of-law-to-fact questions.

See Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000). Appellate courts should also afford nearly total

deference to trial court rulings on application-of-law-to-fact questions, also known as mixed

questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate

courts may review mixed questions of law and fact not falling within this category on a de novo




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basis. Id. We must affirm the decision if it is correct on any theory of law that finds support in

the record. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

II.     Facts Leading to Wilkins’ Arrest

        Concerned citizen Jose Garados called 9-1-1 in the early morning hours of August 19,

2017. Garados described a white Toyota Tacoma truck swerving across lanes and exhibiting other

movements suggesting that the driver was intoxicated. Deputy Jarrod Alexander was dispatched

to investigate.

        On arrival at about 2:20 a.m., Alexander found a white Toyota Tacoma parked in a local

business’ parking lot. The Tacoma’s engine was running, and it was in gear. Alexander found

Wilkins asleep at the wheel, with his foot on the brake. Speaking to Wilkins, Alexander smelled

alcohol coming from the driver’s person.

        After several tries, Alexander was able to rouse Wilkins. Wilkins’ opened his eyes and

removed his foot from the brake causing the truck to roll forward several feet. Wilkins complied

with Alexander’s shouts to stop the truck. Wilkins subsequently failed field sobriety tests and

exhibited six indicia of intoxication when administered a horizontal gaze nystagmus test.

Alexander arrested Wilkins for DWI, and he was later convicted of that offense.

III.    Analysis

        A.        Alexander’s Initial Approach Was a Consensual Encounter

        Contrary to Wilkins’ description of events in the parking lot, Deputy Alexander did not

detain Wilkins when he first approached his vehicle. Rather, Alexander approached Wilkins and

engaged in an encounter. “[A] seizure does not occur simply because a police officer approaches

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an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard

the police and go about his business,’ the encounter is consensual and no reasonable suspicion is

required.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499

U.S. 621, 628 (1991)). “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.” State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (citations

omitted) (footnotes omitted). Thus, “[p]olice officers may approach citizens and talk with them

without any suspicion as long as a stop is not effected.” 1 Taylor v. State, 820 S.W.2d 392, 395

(Tex. App.—Houston [14th Dist.] 1991, no pet.)

         Wilkins argues that Alexander had no reason to approach his vehicle. Specifically, he

argues that his white Toyota Tacoma did not match the description given by the concerned driver

because it did not have a dent in its tailgate. Yet, Alexander did not need a reason to approach

Wilkins’ vehicle. As noted, an officer may approach a person on the street, in a parking lot, or any

other public place. Wilkins was clearly in a public place when Alexander arrived. Thus,

Alexander was permitted to approach Wilkins’ vehicle and engage in an encounter with him

regardless of whether his vehicle fit the exact description given by the 9-1-1 caller.


1
 For example, in Jackson v. State, the court of appeals held that a request by officers at an airport to search a woman’s
bag was an encounter, not a detention. Jackson v. State, 77 S.W.3d 921, 924–28 (Tex. App.––Houston [14th Dist.]
2002, no pet.). In Citizen v. State, the court of appeals held that, when officers approached the front porch of a
residence and asked a man to stop as he turned to enter the house, a police encounter occurred, not a detention. Citizen
v. State, 39 S.W.3d 367, 371 (Tex. App.—Houston [1st Dist.] 2001, no pet.). And, in State v. Hernandez, we held
that no Fourth Amendment violation occurred where a bus passenger, Hernandez, was questioned by police and then
acquiesced to a search of his bag, because it was an encounter rather than a detention. State v. Hernandez, 64 S.W.3d
548, 551–52 (Tex. App.––Texarkana 2001, no pet.).
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         B.       By the Time the Vehicle Rolled Forward, Alexander Had Developed
                  Reasonable Suspicion to Detain Wilkins

         Wilkins also claims that, because Alexander stopped him when he attempted to terminate

the initial encounter, he was being detained. Wilkins points to the fact that his truck rolled forward

several feet as support for his position that he was attempting to terminate the encounter.

         It is true that during a police encounter, the approached citizen has the right to terminate

the encounter. 2 Nevertheless, the record does not support Wilkins’ claim that he attempted to

terminate the encounter.           Rather, it suggests an involuntary action resulting from Wilkins’

intoxication. To begin with, Alexander’s body camera shows Wilkins asleep behind the wheel

with his arm leaning over the driver’s door window. Alexander patted Wilkins’ arm several times

and commanded him to wake. Alexander then jostled Wilkins’ shoulder. It took Alexander thirty-

one seconds to arouse Wilkins. By that point, Alexander had advised dispatch that the vehicle was

running and in gear and that the driver was passed out.

         After Alexander aroused Wilkins, he opened his eyes and the Tacoma rolled forward a few

feet. Wilkins immediately acceded to Alexander’s commands to stop, but he was unable to comply

with the deputy’s instruction to put the vehicle in park. Instead, Alexander had to put the truck

into park himself. By that point, Wilkins had only raised his hands, slightly, and had not spoken.

Consequently, the record does not support Wilkins’ claim that he attempted to terminate the

interview.



2
 See State v. Woodward, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (holding that, “[i]f it was an option to ignore
the [officer’s] request . . . , then a Fourth Amendment seizure has not occurred.”) (citing Brendlin v. California, 551
U.S. 249, 255 (2007)). It follows, then, that, if the encounter is not a seizure, the citizen has the “option to ignore the
[officer’s] request.” Id.
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         In addition, even if we interpreted the evidence as supporting Wilkins’ claim that he tried

to terminate the encounter—so that Alexander’s action in stopping him converted the encounter

into a detention—the trial court found that, by the time the vehicle moved, Alexander had observed

the following information: (1) that Wilkins was the sole occupant of the vehicle; (2) that the engine

of Wilkins’ vehicle was running; (3) that the windows of Wilkins’ vehicle were rolled down; (4)

that Wilkins was partially slumped out of the window of his vehicle; (5) that the odor of alcohol

was coming from Wilkins and his vehicle; (6) that Wilkins was passed out; and (7) that Wilkins’

vehicle was in gear. In a case with facts remarkably similar to the present case, the Dallas Court

of Appeals found that such evidence constituted reasonable suspicion to detain the driver.

Abraham v. State, 330 S.W.3d 326, 330 (Tex. App.—Dallas 2009, pet. dism’d). 3 Therefore, even

if Wilkins were attempting to terminate the encounter and Alexander’s actions in stopping Wilkins

constituted a detention, Alexander had sufficient reasonable suspicion to detain Wilkins at that

point.




3
 In Abraham, the defendant was found “alone, either asleep or passed out in the driver’s seat of his car, with the engine
running, just shy of the intersection of two roadways,” and it took the responding officer “several minutes to rouse”
him. Abraham, 330 S.W.3d at 330. While the court of appeals agreed with the trial court that the officer’s approach
was initially an encounter, it also held that the officer acquired sufficient facts to justify detaining the driver after the
officer spent “several minutes to rouse” him, smelled alcohol on him, and reached into the vehicle to turn off its
ignition. Id.
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IV.    Conclusion

       Consequently, we find no error in the trial court’s denial of Wilkins’ motion to suppress

evidence.

       We affirm the court’s judgment.




                                            Ralph K. Burgess
                                            Justice

Date Submitted:      December 18, 2018
Date Decided:        January 24, 2019

Do Not Publish




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