












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00160-CR
                                                ______________________________
 
 
                                 RICKY DURYAN HUGHES,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                          On Appeal from the County
Court at Law #1
                                                             Gregg County, Texas
                                                         Trial Court
No. 2010-0507
 
                                                             
                                     
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                        Opinion by Justice Moseley




                                                                   O P I N I O N
 
            Ricky
Duryan Hughes appeals his conviction for driving while intoxicated (DWI), enhanced
to a class A misdemeanor by a prior conviction for DWI.  Officer Manfred Gilow, a police officer with
the Longview Police Department, observed Hughes’ car in a parking lot of Teague
Park legally parked with the headlights on. 
As Gilow approached, the headlights of Hughes’ vehicle turned off.  Although he had not observed any illegal
conduct and cars were often parked in this parking lot late at night, Gilow
parked his marked police jeep at an angle to Hughes’ car and turned on the
vehicle’s bright overhead white lights. 
Officer Gilow then illuminated the front of Hughes’ vehicle with his
spotlight.  Gilow testified he did not
observe any illegal activity, but testified the Teague Park area has a high
incidence of drug and prostitution activity. 
During the interaction, Gilow developed a suspicion that Hughes was
intoxicated and ultimately arrested Hughes for DWI.  The trial court denied Hughes’ motion to
suppress, and Hughes, pursuant to a plea bargain, pled nolo contendere and pled
true to the enhancement.  The trial court
sentenced Hughes, consistent with the plea bargain, to one year of confinement,
suspended the sentence, and placed Hughes on fifteen months’ community
supervision.  Hughes’ sole issue on
appeal is whether the trial court erred in denying his motion to suppress. 
            A
trial court’s decision on a motion to suppress evidence is reviewed by applying
a bifurcated standard of review deferring to the trial court’s determination of
historical facts that depend on credibility, but reviewing the trial court’s
application of the law de novo.  Burke v. State, 27 S.W.3d 651, 654 (Tex.
App.—Waco 2000, pet. ref’d).  The
appellate court affords almost total deference to a trial court’s determination
of the historical facts supported by the record, especially when the trial
court’s fact-findings are based on an evaluation of credibility and demeanor.  Carmouche
v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  The court also affords such deference to a
trial court’s ruling on “application of law to fact questions,” also known as “mixed
questions of law and fact,” if the resolution of those questions turns on an
evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  The appellate court, though, reviews de novo
those questions not turning on credibility and demeanor.  Id.  
            The
dispute between the parties in this case concerns a single issue—whether the
initial interaction between Officer Gilow and Hughes was an encounter or an
investigative detention.  Not every
encounter between police and citizens implicates the Fourth Amendment.  Hunter v. State, 955 S.W.2d 102, 104
(Tex. Crim. App. 1997).  There are three
categories of interactions between police officers and citizens:  encounters, investigative detentions, and
arrests.  State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).  
            An
encounter is a purely consensual interaction which a citizen may terminate at
any time.  Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006,
no pet.).  Police officers do not violate
the Fourth Amendment by merely approaching an individual in public to ask
questions. Such an encounter does not require any justification whatsoever on
the part of an officer.  United States
v. Mendenhall, 446 U.S. 544, 555 (1980); Hunter, 955 S.W.2d at 104.  Encounters
are consensual as long as the
person would feel free to go about his business.  Hunter, 955 S.W.2d at 104; see Florida v. Bostick, 501 U.S. 429, 434 (1991); California
v. Hodari D., 499 U.S. 621 (1991).
            A
temporary or investigative detention is a seizure.  Josey
v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref’d).  An investigative detention
occurs when an individual is encountered by a police officer, yields to the
officer’s display of authority, and is temporarily detained for purposes of an
investigation.  Johnson v. State,
912 S.W.2d 227, 235 (Tex. Crim. App. 1995). 
A person yields to an officer’s display of authority when a reasonable
person would not feel free to continue walking or otherwise terminate the
encounter.  Bostick, 501 U.S. at 436;
Hodari D., 499 U.S. at 628; State v.
Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999).  Because an investigative detention is a
seizure, reasonable suspicion must be shown by the officer to justify the
seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).  
            In
determining whether a seizure of the person has occurred for Fourth Amendment
purposes, a court must consider the totality of the circumstances surrounding
the encounter.  Bostick, 501 U.S. at 439; Hunter,
955 S.W.2d at 104.  The crucial test is
whether, taking into account all of the circumstances surrounding the encounter,
the police conduct would have communicated to a reasonable person he was not at
liberty to ignore the police presence and go about his business.  Bostick, 501 U.S. at 439; State v. Velasquez, 994 S.W.2d
676, 679 (Tex. Crim. App. 1999); Hunter, 955 S.W.2d at 104; Jackson
v. State, 77 S.W.3d 921, 927 (Tex. App.––Houston [14th Dist.] 2002, no
pet.).  
            Hughes
argues the initial interaction between Officer Gilow and Hughes was an
investigative detention because Gilow parked in front of Hughes’ vehicle and
activated his overhead “take-down” lights.  The State responds that neither of these
actions constitute a sufficient show of authority that a reasonable person
would not feel free to leave.
            The
Texas Court of Criminal Appeals has considered the fact that a police officer “‘boxed
in’ Appellee’s parked truck” in determining whether a seizure had occurred.  See State
v. Garcia-Cantu, 253 S.W.3d 236, 247 n.44 (Tex. Crim. App. 2008).  This Court has recently held the fact that a
police officer “boxed in” the appellant’s vehicle between an entry gate and the
police officer’s vehicle may suggest a seizure has occurred.  See
Sosa v. State, No. 06-10-00161-CR,
2011 Tex. App. LEXIS 842 (Tex. App.––Texarkana Feb. 4, 2011, no pet. h.)
(mem op).  The position of Gilow’s
vehicle, however, did not prevent Hughes from driving away.  The trial court found, in its findings of
fact,[1]
that “Officer Gilow parked his patrol car cater-corner (diagonally).  The position of the officer’s car did not
block the pickup truck or prevent the pickup from leaving.”  Gilow agreed he pulled in front of Hughes’
vehicle and “kind of angled [the police car] towards him where he was backed
into a space.”  We will defer to the
trial court’s finding of historical fact that Gilow did not “box-in” Hughes
with his patrol vehicle.  As such, this Court’s
recent opinion in Sosa is clearly
distinguishable.  
            Further,
we are not convinced that Officer Gilow’s activation of his overhead “take-down”
lights and use of his spotlight were sufficient to constitute a sufficient show
of authority.          It is important to note that the lights activated by the
police officer in this case were not his overhead emergency lights which flash
red and blue,[2]
but rather the overhead white safety or “take-down” lights.[3]  We believe this distinction to be extremely
important.  Overhead emergency lights are
synonymous with an instruction to stop. 
The lights in this case, while the evidence established are “blinding,”
do not carry the same connotations as emergency lights.  While under some circumstances, overhead “take-down”
lights could be sufficient along with other circumstances to indicate a
sufficient demonstration of authority, we do not believe the facts of this case
demonstrate a sufficient show of authority to constitute an investigative
detention.  The Texas Court of Criminal
Appeals has specifically noted “the use of a spotlight, by itself, is not a
circumstance that necessarily converts a consensual encounter into a Fourth
Amendment detention.”  Garcia-Cantu, 253 S.W.3d at 245 n.43.  The overhead white safety or “take-down”
lights at issue in this case are extremely similar to spotlights.  While Officer Gilow testified the lights can
be “blinding,” it is clear their primary purpose is for illumination—not as a
signal to stop.  The use of the overhead
white safety or “take-down” lights along with the use of a spotlight was not a
sufficient show of authority that a reasonable person would conclude he was not
free to leave.  
            Last,
we note Officer Gilow testified Hughes was “not detained” and could have
terminated the contact at any time. 
Gilow, though, admitted he would have activated his red and blue
emergency lights and pursued Hughes if he had left.[4]  Whether a reasonable person would conclude he
was free to leave is determined by the objective circumstances of the case, not
by the subjective views of either the police officers or the person being
questioned.  Id. at 244 n.41.  An officer’s subjective intent is relevant
only to the extent “such an intent is communicated to the citizen by means of
an authoritative voice, commanding demeanor, or other objective indicia of
official authority.”  Id.  The record contains no evidence that Officer
Gilow informed Hughes he would be detained if he attempted to leave.  
            In
this case, we defer to the trial court’s finding that Hughes’ vehicle was not “boxed
in” by Officer Gilow’s police car.  The
combined use of the spotlight and the overhead white security or “take-down”
lights would not have communicated to a reasonable person that he was not at
liberty to terminate the encounter. 
There is no evidence that Gilow otherwise communicated to Hughes that he
was not free to leave.  We believe the
initial interaction between Gilow and Hughes is best classified as an encounter
and Gilow was not required to have reasonable suspicion.  The trial court did not err in denying Hughes’
motion to suppress.
            For
the reasons stated, we affirm.
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          February
22, 2011
Date Decided:             February
24, 2011
 
Publish 




[1]This
Court has noted the “better practice” is for the trial court to make findings of
fact when denying a motion to suppress.  Morrow v. State, 139 S.W.3d 736, 741
(Tex. App.––Texarkana 2004, no pet.). 
Although the trial court was not required, under the facts of this case,
to make findings of fact, we applaud the trial court’s diligence in making such
findings.


[2]The
Texas Court of Criminal Appeals has noted “[t]he use of ‘blue flashers’ or
police emergency lights are frequently held sufficient to constitute a
detention or seizure of a citizen, either in a parked or moving car.”  Garcia-Cantu,
253 S.W.3d at 245 n.43 (distinguishing use of spotlight from overhead lights); see Crain v. State, 315 S.W.3d 43, 52
(Tex. Crim. App. 2010) (activation of overhead lights factor in concluding
pedestrian was detained).  But see Franks v. State, 241 S.W.3d 135,
142 (Tex. App.––Austin 2007, pet. ref’d) (activation of overhead emergency
lights to illuminate area, standing alone, not sufficient to constitute
detention of motorist already parked at rest park).  This Court has recently noted that emergency
overhead lights which flash red and blue can be a factor suggesting the
interaction was an investigative detention. 
See Sosa, 2011 Tex. App. LEXIS 842 (finding interaction an
investigative detention when officer activated emergency overhead lights and
“boxed in” appellant’s vehicle).
 


[3]In
its findings of fact, the trial court found “Officer Gilow turned on his
overhead white safety lights which illuminated the pickup truck and immediate
area.”  Gilow described the lights he
activated as “just white lights” and agreed they were “[l]ike a big security
light.”  Gilow distinguished them from
his overhead “blue and red” lights.  We
will defer to the trial court’s finding of historical fact in concluding the
lights were “white safety lights,” also known as “take-down” lights.


[4]Officer
Gilow testified the fact that Hughes had terminated the encounter would give
him reasonable suspicion to detain him. 
We do not endorse this legal conclusion made by Gilow.


