                            NUMBER 13-14-00088-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

TROY ANTHONY JENKINS,                                                       Appellant,

                                                v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 207th District Court
                         of Comal County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Chief Justice Valdez
      Appellant Troy Anthony Jenkins pleaded guilty to two counts of aggravated robbery

and one count of burglary of a habitation. See TEX. PENAL. CODE ANN. §§ 29.03, 30.02

(West, Westlaw through Chapter 46 2015 R.S.). The trial court sentenced appellant to

forty-five years in the TDCJ-Institutional Division and assessed a fine of $10,000 on each
count.       By one issue, appellant challenges the trial court’s denial of his motion to

suppress. We affirm.

                                      I.      BACKGROUND1

         On August 15, 2013, the trial court held a hearing on appellant’s motion to

suppress. At the hearing, Officer Samuel Ramirez testified that on October 11, 2012, he

was on duty in the area of FM 306 and IH-35 north in New Braunfels, Texas. Officer

Ramirez stated that the traffic was very light while traveling on north FM 306.                    At

approximately 1:55 a.m., Officer Ramirez received a call from dispatch that an armed

robbery had just occurred near the area where he was driving. After the call, Officer

Ramirez drove toward the robbery location at the 2200 block of East Common. The

dispatcher provided no description of the means of transportation the suspects used and

did not direct Officer Ramirez to where the suspects were heading. 2 Officer Ramirez

explained that he was aware that East Common—the street where the robbery

occurred—connected to streets other than FM 306. While driving to the robbery location,

Officer Ramirez observed two cars driving past his vehicle.

         Officer Ramirez turned around and started following one of the vehicles that was

traveling toward IH-35 because “it caught his attention.” According to Officer Ramirez,

he accelerated to a high speed to approach the vehicle but never activated the emergency

lights of his vehicle.     Although Officer Ramirez noticed no violations of the Texas

Transportation Code while he was behind the vehicle, he noticed that as he followed the


         1 This case is before the Court on transfer from the Third Court of Appeals in
Austin pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T
CODE ANN. § 73.001 (West, Westlaw Chapter 46 2015 R.S.).
         2 According to Officer Ramirez, the dispatcher informed him that the suspects involved in the
robbery were two males who “sounded Hispanic” and carried handguns. The dispatcher also stated that
the victim claimed she heard a “third different voice.”

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vehicle, the driver did not yield the right-of-way to his vehicle and kept driving forward.

According to Officer Ramirez, an average motorist in the same circumstances generally

yields the right-of-way to a police officer, but not to the point where the driver unusually

pulls over to a complete stop. The vehicle then turned left on IH-35 frontage and reduced

its speed to turn right into a shopping center parking lot. Officer Ramirez followed the

vehicle into the parking lot, and at approximately 1:59 a.m., the driver of the vehicle

parked the vehicle. The shopping center was closed at this time and was approximately

within two miles of the robbery location.

       Officer Ramirez testified that after he saw the vehicle pull over, he pulled over as

well and activated his spotlight because it was nighttime. Officer Ramirez stated he did

not activate the emergency lights. A female driver opened the door of the stopped vehicle

and stated that the window did not roll down. Officer Ramirez advised her to stay in the

vehicle. As Officer Ramirez saw the female driver, he told dispatch “we may have the

wrong people.” Officer Ramirez asked the female driver how many passengers were in

the vehicle, and she answered that two other passengers occupied the vehicle. After

Officer Ramirez observed the passengers—a male in the front passenger seat and

another male sitting in the back seat—he instructed the female driver to put the keys of

the vehicle on the hood of the car and to step out of the vehicle. Officer Ramirez then

instructed the two males to put their hands up where they could be seen while he waited

for a backup officer to arrive. Officer Ramirez testified that at this point in time, he did not

draw his gun because he was not certain the passengers were involved in the robbery.

       When backup Officer Michael Burton arrived at the scene, the female driver was

outside of the vehicle, and the two males were still inside of the vehicle. Officer Burton



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immediately drew his weapon and ordered the two males to keep their hands up. Officer

Ramirez ordered appellant, who was sitting in the backseat, to step out of the vehicle.

Officer Ramirez patted down appellant and found a pistol and a loaded magazine in his

pockets. Officer David Cantu, a police officer who also arrived at the location, was

advised that one of the passengers carried a firearm. Officer Cantu drew his department

issued firearm and instructed Dylan Caad—the second male passenger in the vehicle—

to step out of the vehicle and to lie down on the ground. The police officers observed ski

masks and dark clothing in plain view. After they searched the vehicle, they found other

items that matched the items stolen during the robbery. The three passengers of the

vehicle were placed in handcuffs and taken into custody.

        Appellant moved to suppress the evidence obtained during the search, and the

trial court denied the motion. This appeal followed.3

                                     II.     MOTION TO SUPPRESS

A.      Standard of Review

        In reviewing a motion to suppress evidence, Texas courts apply a “bifurcated”

standard of review in which appellate courts give almost total deference to a trial court’s

determination of the historical facts and review de novo the court’s application of the law

of search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.

2000). Whether the facts known to the officer amount to reasonable suspicion is a mixed



        3 A passenger that has been illegally detained can challenge the validity of the initial stop of a
vehicle because his personal liberty and freedom were intruded on by that action. Lewis v. State, 664
S.W.2d 345, 348 (Tex. Crim. App. 1984); Morrison v. State, 71 S.W.3d 821, 828 n.5 (Tex. App.—Corpus
Christi 2002, no pet.) (“We pause briefly to note that standing is not an issue because a passenger in a
vehicle can challenge the search of a vehicle in which he is riding if the search resulted from an
infringement, such as an illegal detention, of the passenger’s Fourth Amendments rights.”) (citing Carroll v.
State, 56 S.W.3d 644, 650 (Tex. App.—Waco 2002, pet. ref’d)).


                                                         4
question of law and fact also subject to review de novo. Hamal v. State, 390 S.W.3d.

302, 306 (Tex. Crim. App. 2012). When mixed questions of law and fact do not depend

on the evaluation of credibility and demeanor, we review the trial judge’s ruling de novo.

State v. Kerwick, 393 S.W.3d. 270, 273 (Tex. Crim. App. 2013).

       In this case, since the historical facts are supported by the record, this court will

apply the “bifurcated” standard of review, which gives deference to the trial court’s

determination of the facts, but will review de novo the application of the law to determine

whether the police officer had reasonable suspicion to investigate appellant and search

appellant’s vehicle. See Ross, 32 S.W.3d at 856.

B.     Applicable Law

       The Fourth Amendment provides that the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated. U.S. CONST. amend. IV.        For purposes of the Fourth Amendment,

investigative detentions and arrests are considered seizures. Johnson v. State, 912

S.W.2d. 227, 235 (Tex. Crim. App. 1995). In order to determine whether an investigative

detention is constitutional, courts use the Terry two-part analysis: we need to determine

(1) whether or not the officer’s search and seizure is justified at its inception, and (2)

whether or not the officer’s search and seizure was reasonably related in scope to the

circumstances that initiated the interference in the first place. Terry v. Ohio, 392 U.S. 1,

18–19 (1968). The police officer’s temporary seizure is permitted if reasonable suspicion

of criminal activity exists. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).

       Reasonable suspicion exists if the officer demonstrates specific, articulable facts

that, coupled with coherent inferences from those facts, lead to the conclusion that a



                                                5
particular person actually is, has been, or soon will be engaged in criminal activity.

Johnson v. State, 444 S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

The analysis of the facts used is the “totality of the circumstances” analysis, which

prevents the divide-and-conquer analysis. United States v. Arvizu, 534 U.S. 266, 274

(2002); see also United States v. Sokolow, 490 U.S. 1, 9-10 (1989) (holding that

independent factors which are considered “innocent” collectively amounted to reasonable

suspicion). When determining whether the police officer’s search is justified, the court

uses an objective standard to determine whether all the facts provided would warrant a

reasonable person to believe that the search is appropriate to determine whether the

suspect was engaged in a criminal act. Gipson v. State, 268 S.W.3d 185, 189 (Tex.

App—Corpus Christi 2008, no pet.).

      In determining whether the search was related to the circumstances that initiated

the interference, courts look at whether the investigative detention lasted longer than

necessary to investigate the circumstances that caused the search. Thomas v. State,

420 S.W.3d 195, 201 (Tex. App. 2013). However, the justification for the search is

restricted in scope to an intrusion that is designed to discover firearms or other hidden

instruments the suspect may use to injure the police officer. Terry, 382 U.S. at 29.

C.    Analysis

      In order to determine whether the investigative detention was constitutional in this

case, we must apply the Terry two-part test. Under the first prong of the test, we must

determine whether Officer Ramirez’s search was justified at its inception because he had

a reasonable suspicion that the individuals engaged or had engaged in criminal activity.

Wade, 422 S.W.3d at 668.



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       Giving almost total deference to a trial court’s determination of the historical facts,

the evidence presented showed the following factors: (1) Officer Ramirez saw two

vehicles “pass by” right after the dispatcher advised about the robbery; (2) the traffic was

very light, and it was highly probable that one of the vehicles he saw was involved in the

robbery; (3) he observed more than two passengers in the vehicle; (4) the vehicle was

first observed within the area of the robbery location; and (5) the vehicle pulled over into

a shopping center parking lot that was closed at 2:00 a.m.

       Appellant argues that Officer Ramirez had no reason to start the investigation

because the driver of the vehicle committed no violations of the Texas Transportation

Code. This argument is irrelevant because the driver of the vehicle pulled over without

any police action. The trial court may have found that a reasonable person, even though

intimidated by the presence of the police officer behind him, is not likely to stop unless

the police officer turns on the emergency lights on his vehicle. Appellant also argues that

Officer Ramirez did not have a reasonable suspicion because he conceded uncertainty

regarding the passengers’ relation to the robbery when he said to the dispatcher “we

might have the wrong people” and also because Officer Ramirez did not immediately draw

his gun when he approached the vehicle.4 In Gipson, the court used an objective

standard to determine whether the facts would warrant a reasonable person to believe

that the search is appropriate to determine if the suspect was engaged in criminal activity.

Gipson, 268 S.W.3d at 189.           Therefore, we should look at the facts objectively to

determine whether a reasonable person in similar circumstances would have found that



       4  At the hearing, when asked, “Why didn’t you draw your gun,” Officer Ramirez replied, “At that
time, I was still unsure if these were the possible suspects.”


                                                      7
these facts established a reasonable suspicion that a crime was afoot. Johnson, 444

S.W.3d at 214.

       Appellant contends that Officer Ramirez’s investigation is a product of his

inarticulate hunch because the dispatcher did not provide information regarding the

means of transportation the suspects used or the direction in which the suspects were

headed. However, courts have considered a vehicle’s proximity to the reported crime as

a relevant factor that raises the level of suspicion. See Sanders v. State, 992 S.W.2d

747, 752 (Tex. App.—Amarillo 1999, pet. ref’d.).

       In the present case, regardless of the means of transportation, a reasonable

person would likely infer that a suspect would be in close proximity to the location of the

scene because the dispatcher call occurred at 1:55 a.m. and advised Officer Ramirez that

the suspects left the robbery only two minutes prior to the victim’s call. Approximately,

three minutes later, the vehicle pulled over into the closed parking lot. A reasonable

person could have deduced that the suspects would be at a nearby location given that

only a few minutes elapsed after the call. At the hearing, Officer Ramirez testified that

the traffic was very light and that he only observed two cars “pass by.” In addition, based

on evidence that there were more than two passengers in the vehicle, which is consistent

with the information the dispatcher provided regarding a “third voice” and possibly a third

person involved, the trial court could have inferred that if more than two people were

involved in the robbery, they would be traveling in the vehicle together and would try to

escape the scene.

       Appellant points out that Officer Ramirez followed only one of the two vehicles and

failed to get information on the second vehicle. Appellant also argues that Officer Ramirez



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attempted to dictate the fashion in which a motorist should yield the right-of-way to a

speeding officer by finding that a motorist who pulls into a parking lot to yield the right-of-

way is inappropriate and suspicious. In essence, appellant requests that we look at each

fact independent of the others because neither by itself is suspicious. However, we do

not consider these facts independently; instead, we consider the totality of the

circumstances. Arvizu, 534 U.S. at 274.           Thus, although a vehicle parked in close

proximity to a business that is closed for the day, is not, in itself, suspicious; it is a factor

we may consider in deciding whether reasonable suspicion exists. Klare v. State, 16

S.W.3d. 68, 74 (Tex. App. 2002). The time of the day is another factor taken into account

when determining whether an officer’s suspicion was reasonable. Id. at 73–4. The court

in Tanner determined that the police officer was justified to investigate two individuals

who came out from behind a darkened place that had been closed at 3:00 a.m. reasoning

that the totality of the circumstances—time of night, poor lighting, and location—

amounted to reasonable suspicion. Tanner v. State, 228 S.W.3d 852, 858–59 (Tex.

App.—Austin 2007, no pet.).

        In the present case, even though pulling over into a parking lot may not be

suspicious per se, a vehicle pulling over to park in a closed shopping center located within

two miles of a robbery location, approximately three minutes after the dispatch call, and

carrying the number of passengers consistent with the description provided, raises some

suspicion. Moreover, the trial court may have reasonably inferred that the driver was

attempting to elude Officer Ramirez by parking the vehicle in a closed shopping center at

2:00 a.m. Furthermore, the trial court may have also inferred that the reason that the




                                                   9
driver wanted to elude Officer Ramirez showed a consciousness of guilt and that the

occupants of the vehicle were involved in the crime.

         In the second prong of the Terry two-part test, the court will determine whether the

officer’s search and seizure was reasonably related to the circumstances that initiated the

interference in the first place. The purpose of the investigation was to determine if the

occupants of the vehicle were involved in the robbery. Since the dispatch log advised the

police officers that the suspects carried two firearms, the police officers knew it was

possible that the passengers of the vehicle carried firearms. For purposes of their own

protection, police officers have the right to pat down the outer clothing of individuals, who

they believe can be armed. Terry 382 U.S. at 8. In order to dispel his suspicion and

protect himself from a possible injury, the officer who performed the pat down was entitled

to ensure the passengers were not armed. Therefore, the trial court may have concluded

that the officer was justified when he conducted a pat-down search of appellant. After

finding the firearm in appellant’s pocket, and observing clothing in the back seat that

matched the description of the clothing used by the actors involved in the robbery, the

police officers were justified to conduct further investigation to dispel or confirm their

suspicions. Garcia v. State, 327 S.W.3d 243, 248 (Tex. App.—San Antonio 2010, no

pet.).

         Since a reasonable person would coherently suspect that the individuals in the

vehicle were involved in criminal activity and the purpose for the investigation was

reasonably related to the robbery, the officers in this case were justified in conducting the

search, and the interference is therefore constitutional. We conclude that the trial court




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did not err in denying appellant’s motion to suppress evidence.5 We overrule appellant’s

sole issue.

                                         III.    Conclusion

        We affirm the trial court’s judgment.

                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of July, 2015.




        5 Appellant also argues that Officer Ramirez’s investigation was an unreasonable application of the

community caretaking function. This issue however is not necessary to the final disposition of the appeal,
and therefore we will not address it. See TEX. R. APP. P. 47.1 (providing that the court of appeals must
hand down a written opinion that is as brief as practicable but that addresses every issue raised and
necessary to final disposition of the appeal).

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