                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-15-00039-CR


                        JOSEPH LEWIS GONZALES, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 181st District Court
                                     Potter County, Texas
                 Trial Court No. 68,522-B, Honorable John B. Board, Presiding

                                    November 30, 2015

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


       After his motion to suppress evidence was overruled appellant Joseph Lewis

Gonzales plead guilty to possession of a controlled substance1 enhanced by a prior

conviction and was sentenced by the trial court to a fifteen-year term of imprisonment.

Appellant reserved the right to challenge the suppression ruling on appeal. Finding no

abuse of discretion by the trial court, we will affirm its judgment.



       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
                                          Background


       Shortly before 2:00 a.m. on January 27, 2014, an Amarillo police officer and the

officer trainee he was supervising were patrolling the western part of the city. The

supervising officer was seated in the passenger seat as the trainee drove.           While

heading south on Georgia Street, the supervising officer saw through the rear-view

mirror and the outside mirror a vehicle driven by appellant turn off Georgia into a private

parking lot without signaling the turn.


       At the supervising officer’s direction, the trainee turned the patrol car around and

headed toward the parking lot, intending to make a traffic stop. The trainee did not

activate the vehicle’s overhead lights so the events that followed were not recorded. By

the time the patrol car turned around, appellant’s vehicle had entered the private

parking lot.


       The patrol car pulled behind appellant’s vehicle in the darkened lot. The trainee

activated the car’s spotlight and turned it toward appellant who had exited his parked

vehicle and was walking toward the patrol car. The trainee asked appellant to remove

his hands from his pockets and produce identification. The trainee obtained appellant’s

identification and returned to the patrol car to run a background check.


       Meanwhile, the supervising officer made contact with appellant. He asked if

appellant had a weapon on his person and appellant replied he had a knife. When

appellant reached for his pocket a third officer, now on the scene for backup, grabbed

his hand and asked him not to reach for a weapon.




                                              2
       At the supervising officer’s request, appellant consented to a search of his

person. Inside appellant’s front pocket the supervising officer found a tobacco can

which, in turn, contained a breath mint can. Inside the breath mint can was a clear bag

containing a substance the officer believed to be methamphetamine.           The backup

officer placed appellant in handcuffs and the supervising officer placed him in the patrol

car.


       Appellant’s Miranda rights were read and he provided written and oral

statements. The oral statement was electronically recorded using the patrol car’s audio-

video system. In the patrol car, the officers told appellant he was under arrest for

possession. Officers inventoried appellant’s vehicle and found a useable quantity of

marijuana, a pipe, and a scale with “crystal residue.” Appellant’s background check

revealed he was wanted on a parole violation warrant and had a suspended driver’s

license.


       By written motion, appellant sought suppression of all items seized in the search

of his person and vehicle along with any oral or written statement he gave the officers.

After a lengthy evidentiary hearing in which appellant challenged the lawfulness of his

detention, the trial court denied the motion. Written findings of fact and conclusions of

law were not requested nor were they filed. Under a plea-bargain agreement appellant

plead guilty to the charged offense. The court found appellant guilty and sentenced him

as noted.




                                            3
                                         Analysis


      Appellant argues police did not detain him for a traffic violation and the evidence

failed to establish a consensual encounter because it did not occur in a public place and

a reasonable person would not have felt free to leave. For those reasons, appellant

concludes, he was unlawfully detained and the trial court abused its discretion by failing

to grant his motion to suppress.


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

discretion. 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. Wyatt v. State, 23

S.W.3d 18, 23 (Tex. Crim. App. 2000); Carmouche, 10 S.W.3d at 327. If, as here, the

trial court did not make explicit findings of fact, we review the evidence in a light most

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

supporting its ruling. 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. Fienen v. State, 390 S.W.3d 328, 335 (Tex.

Crim. App. 2012) (citing Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App.

2006)).


      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. St. George v. State, 237 S.W.3d



                                            4
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.

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. 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. State v. Romo, No. 04-14-00197-CR, 2015 Tex. App. LEXIS

6103, at *13 (Tex. App.—San Antonio June 17, 2015, no pet. h.) (mem. op., not

designated for publication) (citing Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012)).


      The law recognizes three types of encounters between law enforcement and

citizens: (1) arrests which are supported by probable cause, Brown v. Illinois, 422 U.S.

590, 601, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) brief investigatory stops which

require reasonable suspicion, Terry v. Ohio, 392 U.S. 1, at 25-26, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 (1968); and (3) brief consensual encounters between police and citizens,

which do not require objective justification, Florida v. Bostick, 501 U.S. 429, 434, 111 S.

Ct. 2382, 115 L. Ed. 2d 389 (1991). Under the third type of encounter, law enforcement

may approach and question an individual in a public place without implicating the Fourth

Amendment’s protections. United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105,

153 L. Ed. 2d 242 (2002); Bostick, 501 U.S. at 434; Florida v. Royer, 460 U.S. 491, 497-

98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). Under that circumstance, an officer may

ask questions of the citizen provided they do not “induce cooperation by coercive


                                            5
means.” Drayton, 536 U.S. at 201. There is no seizure, provided a reasonable person

would feel free to terminate the encounter. Id.; see In re R.S.W., No. 03-04-00570-CV,

2006 Tex. App. LEXIS 1925, at *9 (Tex. App.—Austin Mar. 9, 2006, no pet.) (mem. op.)

(noting the three types of police-citizen encounters).


       An officer witnessing what he reasonably believes is a traffic violation possesses

probable cause to conduct a traffic stop and detain the offender. State v. Lockhart, No.

07-04-00304-CR, 2005 Tex. App. LEXIS 6159, at *8 (Tex. App.—Amarillo Aug. 2, 2005,

no pet.) (not designated for publication); TEX. TRANSP. CODE ANN. § 543.001 (West

2011); see State v. Kurtz, 152 S.W.3d 72, 79 (Tex. Crim. App. 2004) (distinguishing

“arrests” for Rules of the Road violations from other investigative detentions),

superseded on other grounds by statute as recognized in York v. State, 342 S.W.3d

528, 535 n.20 (Tex. Crim. App. 2011).


       Without findings of fact and conclusions of law we have no explicit explanation by

the court for its ruling.2 But we assume the court found all facts necessary to support its

ruling and we will affirm the decision if it finds reasonable support in the record and is

correct on any applicable theory of law. The supervising officer testified he personally

saw appellant commit a traffic violation. Doing so gave the officer probable cause to

detain appellant.   He and two other officers contacted appellant and obtained his

consent to search his person. This search yielded the contraband appellant sought to


       2
         In his brief, appellant argues the trial court verbally stated a finding that his
encounter with police was consensual and not the result of a traffic stop. We have
reviewed carefully the statements of the trial court to which appellant refers, and are
satisfied the court made no findings of fact. See State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006) (standard of review in absence of trial court findings).


                                             6
suppress. We are unable to say the trial court clearly abused its discretion by failing to

sustain appellant’s motion to suppress.


                                       Conclusion


      We overrule appellant’s issue, and affirm the judgment of the trial court.



                                                James T. Campbell
                                                   Justice



Do not publish.




                                            7
