                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00474-CR
                            ____________________

                       THE STATE OF TEXAS, Appellant

                                          V.

                     ROBERT LEE ERSPAMER, Appellee

________________________________________________________________________

                On Appeal from the County Court at Law No. 4
                        Montgomery County, Texas
                         Trial Cause No. 16-311932
________________________________________________________________________

                           MEMORANDUM OPINION

      Appellee Robert Lee Erspamer (Erspamer or Appellee) was charged with

driving while intoxicated. The trial court granted Erspamer’s Motion to Suppress

and the State appeals the trial court’s order. In one issue, the State argues the trial

court erred in granting the motion to suppress evidence. We affirm.




                                          1
                                 Motion to Suppress

      Erspamer filed a motion to suppress requesting the court to “suppress any and

all evidence seized or obtained as a result of illegal acts on behalf of the Government

in this DWI criminal prosecution which violated the defendant’s rights as guaranteed

him under both the federal and state constitutions and under state statutes.” The

motion asserted, among other things, that “[t]he seizure of the Accused was made

without any reasonable suspicion that he was engaged in criminal activity[]” and the

acquisition of evidence was not pursuant to a search or arrest warrant, was absent

exigent circumstances, and made without probable cause to believe Erspamer was

engaged in criminal activity.

      At the hearing on the motion to suppress, Trooper Robert Oelsner testified

that in the early morning hours of January 30, 2016, he was an officer with the Texas

Department of Public Safety and was on patrol in Montgomery County. According

to Trooper Oelsner he noticed “a pair of taillights” on a car on Old Houston Road

that was in the grassy “median-type of area on the two-lane roadway.” Trooper

Oelsner testified that the taillights caught his attention because of the time of night,

because on that road at that time there was “no reason for someone to be stopped

unless they’re . . . having vehicle issues[,]” and because the area was not well-

traveled and dark. Trooper Oelsner explained that he was concerned for the welfare

                                           2
of the person in the vehicle because of the time of night and because the area was

known for criminal activity, and he “[w]ent over to ensure that they didn’t need any

help as far as a wrecker or changing of a tire or anything like that.”

      According to Trooper Oelsner, he pulled up on the roadway next to the

vehicle’s driver window, rolled his patrol car window down, and turned on his “alley

light[]” to “see the occupants of the vehicle; make sure . . . everything was okay[.]”

Oelsner stated that he did not turn on his flashing lights or display his weapon.

Trooper Oelsner testified that Erspamer was in the vehicle alone, and Oelsner rolled

his passenger window down and signaled for Erspamer to roll his window down.

When Oelsner asked him if he was okay, Erspamer replied that he had “pulled over

to check his Facebook.” At the hearing Oelsner described Erspamer’s demeanor as

“kind of shocked . . . law enforcement had pulled up next to him[]” and that “he had

a look of . . . confusion of . . . why is this officer coming over here.” Trooper Oelsner

testified that Erspamer exhibited the following signs of intoxication: red and

bloodshot eyes, flushed face, and slurred speech. Erspamer told him that his

destination was a residence half a mile away and, according to Trooper Oelsner, “it

just didn’t make sense for him to stop a half a mile from the house to check his

Facebook[.]” Trooper Oelsner testified that due to “the high volume of intoxicated




                                           3
drivers that are out [and] about [at] that time[]” and because “a lot of them take the

back roads[,]” he decided to investigate further.

      Trooper Oelsner testified that he put his patrol car in reverse, turned on his

rear red and blue lights, got out, and told Erspamer to put his vehicle in park and to

“step out with his driver’s license.” According to Trooper Oelsner, he turned his

lights on because “[a]t that point, [Oelsner] felt that it was . . . time to detain

[Erspamer] to further investigate . . . if he was intoxicated or not.” Trooper Oelsner

also testified that he noticed the odor of alcohol and asked Erspamer to step out of

the vehicle so Oelsner could determine if the odor was coming from Erspamer. After

confirming the odor of alcohol was coming from Erspamer, Oelsner had Erspamer

perform field sobriety tests that confirmed Oelsner’s suspicion that Erspamer had

been driving while intoxicated. According to Trooper Oelsner, Erspamer’s

intoxication was later confirmed by blood test results. Trooper Oelsner explained

that his dashboard camera recorded a video of his questioning of Erspamer but there

was no audio for the initial encounter because Oelsner “didn’t feel it necessary

because [he] honestly thought it was a motorist assist . . . and didn’t think that needed

to be recorded or anything like that.” The dashboard video recording was admitted

into evidence.




                                           4
      During cross-examination, Trooper Oelsner acknowledged that when he first

noticed Erspamer’s vehicle, Oelsner did not believe Erspamer was engaging in any

criminal activity, Erspamer had been lawfully parked on the shoulder of the

roadway, Erspamer had not committed a traffic violation or violated any statute by

parking on the side of the road, he had not shown any sign of needing medical

assistance, Oelsner had not activated his emergency flashing lights, and neither

Erspamer’s appearance nor actions prior to talking to the officer indicated that

Erspamer was in any kind of distress. Oelsner agreed that there was no indication

that Erspamer’s vehicle was in need of repair or experiencing mechanical failure.

Oelsner agreed that when he pulled up to Erspamer’s vehicle he could see the

illumination of a phone. On cross-examination, Trooper Oelsner also acknowledged

that Erspamer “complied with his command” to roll the window down and that after

Oelsner had asked Erspamer the first question—if Erspamer was okay—Oelsner did

not observe any signs of distress. Officer Oelsner agreed that if Erspamer had been

in need of assistance Oelsner could see that Erspamer had access to a device that he

could use to obtain assistance and that he could have walked a half mile back to the

location he came from or a half mile to his destination to get assistance. Trooper

Oelsner conceded that the route Erspamer was taking was consistent with the

location he had come from and the location that he stated was his destination. After

                                         5
reviewing the offense report, Trooper Oelsner agreed that he did not note on the

report that Erspamer’s speech was slurred. Trooper Oelsner also acknowledged that

just because a person has a flushed face or bloodshot eyes does not necessarily mean

they are intoxicated and that those characteristics alone would not cause him to

necessarily assume a person is intoxicated.

      After granting Erspamer’s motion to suppress, the trial court entered findings

of fact and conclusions of law. The findings and conclusions relating to whether the

initial encounter was consensual included the following:

                                 Findings of Fact

      ....

      [] Robert Oelsner, who was a Trooper for the Texas Department of
      Public Safety at the time of the defendant’s arrest and was a Magnolia
      Police Department Officer at the time of the suppression hearing, was
      a credible witness at the hearing on the motion to suppress.

      ....

      [] The Trooper’s initial encounter with the defendant did not constitute
      a consensual encounter outside the scope of the Fourth Amendment’s
      protections. See Wade v. State, 422 S.W.3d 661 (Tex. Crim. App.
      2013); Castleberry v. State, 332 S.W.3d 460 (Tex. Crim. App. 2011).

      [] The Court finds that based on the evidence and the credibility of the
      witness that no reasonable person in this situation would have felt free
      to disregard the command by a uniformed police office[r] in a marked
      police vehicle to stop his actions and roll []his window down to talk to
      the officer or to disregard the command and leave.

                                         6
....

[] After considering and weighing the credibility of the evidence and
the witness, the Court finds that Erspamer’s compliance with the
Trooper’s command to roll down the window and talk to the Trooper
was acquiescence to lawful authority and was not a purely consensual
encounter.

[] After considering and weighing the credibility of the evidence and
the witness, the Court finds that Erspamer yielded to the Trooper’s
display of authority by responding to his commands and answering his
questions. Erspamer told the Trooper that he was “okay and that he
pulled over for a few minutes to check his Facebook.” Whatever
interest there was in community caretaking, ended following
Erspamer’s answer.

....

                          Conclusions of Law

....

[] The Trooper’s initial encounter with the defendant did not constitute
a consensual encounter outside the scope of the Fourth Amendment’s
protections. See Wade v. State, 422 S.W.3d 661 (Tex. Crim. App.
2013); Castleberry v. State, 332 S.W.3d 460 (Tex. Crim. App. 2011).

[] Erspamer was detained when he acquiesced to the Trooper’s show of
lawful authority both at the inception of it and during the time it
continued following the Trooper’s initial question of whether Erspamer
“was okay.”

[] Erspamer’s detention was unlawful[] because there was not
reasonable suspicion that Erspamer had been, was, or about to be
involved in criminal activity, the detention violated the Fourth
Amendment of the United State[s] Constitution and Article 1 section 9
of the Texas Constitution and all evidence thereafter obtained as a result
of the unlawful detention was unlawfully obtained and is suppressed.
                                    7
      [] The expansion of the initial contact and detention into a DWI
      investigation was unlawful because, at its inception, there was not
      reasonable suspicion to believe that Erspamer was driving while
      intoxicated and all evidence thereafter obtained as a result of it was
      unlawfully obtained and is suppressed.

      [] Trooper’s initial encounter with the defendant constituted an illegal
      detention that mandates suppression of evidence obtained as a result of
      the unlawful seizure.

                                 Issue on Appeal

      The State argues that Trooper Oelsner’s initial contact with Erspamer

constituted a consensual encounter, “and, therefore, did not fall under Fourth

Amendment scrutiny—up until the point Oelsner activated his overhead flashing

lights and pulled behind” Erspamer. The State asserts that by the time Oelsner

detained Erspamer, reasonable suspicion justified the detention. According to the

State, Oelsner observed factors prior to detaining Erspamer that reasonably support

Oelsner’s conclusion that Erspamer may have been involved in criminal activity,

and Oelsner was warranted in detaining Erspamer to investigate a potential DWI.

                               Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). In

reviewing the trial court’s decision, we do not engage in our own factual review.
                                         8
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is the

sole trier of fact and judge of the credibility of the witnesses and the weight to be

given their testimony at a suppression hearing. Wiede v. State, 214 S.W.3d 17, 24-

25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). Therefore, we give almost total deference to the trial court’s rulings on (1)

questions of historical facts, even if the trial court’s determination of those facts was

not based on an evaluation of credibility and demeanor, and (2) application-of-law-

to-fact questions that turn on an evaluation of credibility and demeanor. Amador,

221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App.

2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when

the application-of-law-to-fact questions does not turn on the credibility and

demeanor of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.

Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial court’s

ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.

App. 2006). When the trial court grants a motion to suppress and files accompanying

findings of fact and conclusions of law, and the sole witness at the motion to suppress

                                           9
hearing is the arresting officer, the only question before us is whether the trial court

properly applied the law to the facts it found. See State v. Gray, 158 S.W.3d 465,

467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86-87, 89. We must

uphold the trial court’s ruling if it is supported by the record and correct under any

theory of law applicable to the case, even if the trial court gave the wrong reason for

its ruling. See State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541

U.S. 974.

      Determining whether a given set of facts amounts to a consensual encounter

or a detention under the Fourth Amendment is an issue of law. Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013). The application of legal principles to a

specific set of facts is an issue of law and is subject to de novo review. Id. Thus,

whether Trooper Oelsner’s initial interaction with Erspamer constituted a consensual

encounter or an illegal detention is subject to de novo review. See id.

                                   Applicable Law

      The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures. U.S. Const. amend. IV. A temporary detention

for purposes of investigation constitutes a seizure for Fourth Amendment purposes.

See Terry v. Ohio, 392 U.S. 1, 16 (1968). However, not every encounter between a

                                          10
civilian and a police officer implicates the Fourth Amendment. See Florida v.

Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim.

App. 1997).

      “There are three distinct categories of interactions between police officers and

citizens: (1) encounters, (2) investigative detentions, and (3) arrests.” Crain v. State,

315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Unlike an investigative detention or an

arrest—each a seizure for Fourth Amendment purposes—an encounter is a

consensual interaction, which the citizen may terminate at any time.” See Gurrola v.

State, 877 S.W.2d 300, 302-03 (Tex. Crim. App. 1994). As a general rule, when an

officer through force or a showing of authority restrains a citizen’s liberty, the

encounter is no longer consensual. State v. Woodward, 341 S.W.3d 404, 410-12

(Tex. Crim. App. 2011). “This is the point at which an encounter becomes a

detention or arrest, both of which are seizures under the Fourth Amendment.” Id. at

411. In determining whether a reasonable person would have felt free to leave, we

look at the officer’s conduct as well as the setting in which the police-citizen

interaction takes place. Crain, 315 S.W.3d at 51; State v. Garcia-Cantu, 253 S.W.3d

236, 244 (Tex. Crim. App. 2008).




                                           11
                                       Analysis

      Oelsner testified on direct examination that he “signaled” for Erspamer to roll

his window down. Oelsner was asked on cross-examination whether Erspamer

“complied with your display of law enforcement authority and complied with your

command and rolled down the window,” and Trooper Oelsner responded, “Yes, sir.”

      After considering and weighing the credibility of the witness, the trial court

made a specific finding of fact that Erspamer complied with Trooper Oelsner’s show

of authority and command to roll down the window and talk to him.1 Depending

upon the circumstances, a detention occurs when a person in a parked car complies

with a police order to roll down the window, open the door, or get out of the car.

Ebarb v. State, 598 S.W.2d 842, 850 (Tex. Crim. App. 1980) (op. on reh’ing); Ex



      1
         The State cites to State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App.
2013), in arguing that this Court “need not defer to the trial court’s purported finding
of fact that Oelsner ‘commanded’ the appellee to roll down his window, because the
only mention of a ‘command’ was intertwined within legal conclusions to be
reviewed de novo.” The trial court’s findings of fact included that Oelsner
commanded Erspamer to roll his window down and that Erspamer yielded to
Oelsner’s display of authority by rolling down his window and talking to him. See
State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) (“[F]actual findings
are who did what, when, where, how or why.”) This finding explained the what,
how, and why of Erspamer’s reaction in rolling down the window and talking with
Trooper Oelsner. See, e.g., State v. Nelson, No. 13-13-00085-CR, 2014 Tex. App.
LEXIS 1580, at **9, 18 (Tex. App.—Corpus Christi Feb. 13, 2014, pet. ref’d) (mem.
op., not designated for publication) (applying the law to the trial court’s finding of
fact and concluding that the defendant yielded to the officer’s show of authority).
                                          12
parte Nieves, No. 08-11-00189-CR, 2013 Tex. App. LEXIS 9067, at *17 (Tex.

App.—El Paso July 24, 2013, no pet.) (mem. op., not designated for publication);

Tex. Dep’t of Pub. Safety v. Adkins, No. 11-10-00298-CV, 2012 Tex. App. LEXIS

6814, at *11 (Tex. App.—Eastland Aug. 16, 2012, no pet.) (mem. op., not designated

for publication); Martin v. State, 104 S.W.3d 298, 301 (Tex. App.—El Paso Apr. 24,

2003, no pet.). The State acknowledges this line of cases, but instead argues that

Oelsner testified he “signaled” for Oelsner to roll his window down which does not

amount to a detention. See, e.g., Soto v. State, No. 05-07-00029-CR, 2007 Tex. App.

LEXIS 8327, at *4 (Tex. App.—Dallas Oct. 22, 2007, pet. ref’d) (mem. op., not

designated for publication) (no detention where officer “directed,” rather than

ordered, defendant to roll down window); Ashton v. State, 931 S.W.2d 5, 7 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d) (no investigatory detention when officer

approached defendant sitting in parked car and asked her to roll down her window);

see also Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980)

(detention does not occur if an officer merely approached a parked vehicle and

knocks on the window).

      The trial court, however, as the sole trier of fact and judge of the credibility

of the witnesses, apparently believed Oelsner’s acknowledgement on cross-

examination that Erspamer had complied with Oelsner’s show of authority and that

                                         13
Oelsner made a “command” to roll down the window. See Ross, 32 S.W.3d at 855

(At a suppression hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony and may

accept or reject all or any part of a witness’s testimony.). This is a finding of fact

and incident to the trial court’s impression of the credibility of the witness. The

finding is supported by the testimony during cross-examination, and our focus is

limited to a determination of whether the trial court’s conclusions of law flow from

this factual finding. See Gray, 158 S.W.3d at 467, 469 (once trial court has made

specific findings of fact, a court of appeals reviews the ruling on the motion to

suppress “without infringing on the trial court’s discretion to determine the facts”);

Guzman, 955 S.W.2d at 86-87, 89.

       Based upon the findings of fact that are supported by the record, we cannot

say the trial court erred in concluding that the encounter did not constitute a

consensual encounter outside the scope of the Fourth Amendment’s protections.2

See Ebarb, 598 S.W.2d at 850. We overrule the State’s issue on appeal and affirm

the trial court’s order.


       2
         Because the State does not argue on appeal that, even if the encounter was
not consensual, Trooper Oelsner’s exercise of his community caretaking function
justified his detention of Erspamer, we need not address the trial court’s additional
findings regarding Oelsner’s exercise of his community caretaking function. See
Tex. R. App. P. 47.1.
                                         14
      AFFIRMED.


                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on June 14, 2017
Opinion Delivered August 2, 2017
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




                                      15
