      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-05-00393-CR



                            Katherine Frances Hankins, Appellant


                                                v.


                                 The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
               NO. 677205, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After her motion to suppress evidence was overruled, appellant Katherine Frances

Hankins pleaded no contest to an information accusing her of misdemeanor driving while

intoxicated. See Tex. Pen. Code Ann. § 49.04 (West 2003). The county court at law assessed

punishment at 120 days’ confinement and a $2000 fine, but suspended imposition of sentence and

placed her on community supervision for two years. Appellant contends on appeal that she was

seized and evidence was obtained in violation of the United States and Texas Constitutions and

Texas Code of Criminal Procedure art. 38.23. See U.S. Const. amends. IV, XIV; Tex. Const. art.

1, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005) (evidence obtained in violation of state

or federal constitution inadmissible). For the reasons that follow, we affirm the judgment.
                                   FACTUAL BACKGROUND

                At the suppression hearing, Austin Police Officer Adam Johnson testified that just

before three o’clock on the morning of August 10, 2004, he observed a car make a “very abrupt lane

change” across two lanes of traffic on Sixth Street. His suspicion aroused because of the hour,

location, and manner of the driving, Johnson followed the car as it made a quick turn onto Brazos

Street. By the time he turned onto Brazos, Johnson saw that the car was already parked. As he and

his partner watched, appellant, the female driver, exchanged seats with her male passenger. The

passenger exited the vehicle and appellant “scooted” across the seat to the passenger side. As the

officers backed up to position their vehicle near appellant’s car, one of the officers leaned out of the

window and said, “What’s going on?” Johnson got out of the police car and approached appellant’s

car.

                Johnson testified that no one was in the driver’s seat, and he did not say or do

anything to make the occupants think they could not leave. The male passenger told Johnson that

he was going to ride his bicycle home. Johnson observed a bicycle on the back of the car. As

Johnson approached appellant on the passenger side to ask her what was going on, she responded

to his question in speech so slurred that he could not understand her. Her eyes were bloodshot and

watery, and Johnson believed her to be intoxicated. Appellant told Johnson that she had come from

the Ritz, a bar on Sixth Street, and had consumed several beers and shots. She pulled over because

she realized that she should not be driving. After she failed the standard sobriety tests, Johnson

placed her under arrest.




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               The male passenger, Timothy Carr, also testified at the hearing. Carr testified that

when they were approached by the police officers, he had the keys to the ignition in his hand and was

in the driver’s seat. In response to the question, “What’s going on?,” Carr testified that he told the

officers that he was going to drive appellant home. He testified that the officers backed up to

appellant’s car and told them to “wait there.” He testified, “I was told I had to stay there.”


                                            ANALYSIS

               On appeal, appellant contends that the situation escalated from a consensual

encounter to a seizure the moment Carr and appellant “yielded to the officers’ show of authority.”

Appellant urges that the officers did not witness a traffic violation or any act that would suggest

criminal activity was afoot and that therefore the officers’ actions constituted a seizure without

reasonable suspicion in violation of the Fourth and Fourteenth Amendments of the United States

Constitution, Article 1, Section 9 of the Texas Constitution, and Texas Code of Criminal Procedure

article 38.23. See U.S. Const. amends. IV, XIV; Tex. Const. art. 1, § 9; Tex. Code Crim. Proc. Ann.

art. 38.23.

               We conduct a bifurcated review of a trial court’s suppression ruling, giving almost

total deference to the trial court’s findings of fact, but conducting a de novo review of the trial

court’s application of law to those facts. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

When the trial court fails to file findings of fact, we view the evidence in the light most favorable

to the ruling and assume the trial court made implicit findings of fact that support its ruling as long

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as those findings are supported by the record. Ross, 32 S.W.3d at 855. Further, if the trial court’s

decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at

856.

               Citing numerous cases relating to traffic “stops,” appellant complains that the officers

did not witness any conduct that would constitute a traffic violation sufficient to justify a stop, nor

did they witness anything that would make them suspect that criminal activity was afoot. But as the

trial court explained in overruling the motion to suppress at the close of evidence,


       [T]he officer did not stop the car. The car stopped itself. And there was enough to
       hang the hat on there for why he stopped his car and went over there and saw what
       he called erratic driving. And he saw the car stop and saw the driver move over as
       the police officer pulled down the street behind her. And I think that’s enough reason
       to approach the driver. And the driver was over on the other side. And when he
       asked the driver a question and she slurred her speech, to the point of not even
       intelligible [sic], I think that’s reason enough to continue the investigation at that
       point. And, of course, it’s not much in dispute what happened after that.


               Appellant’s case is distinguishable from those in which a citizen is pulled over for

a traffic violation. See, e.g., Corbin v. State, 85 S.W.3d 272, 274-75 (Tex. Crim. App. 2002). Not

all encounters with the police implicate the Fourth Amendment’s protection against unreasonable

seizures. 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: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.

Crim. App. 2002). An encounter needs no justification, a detention requires reasonable suspicion,

and an arrest must be supported by probable cause. Johnson v. State, 912 S.W.2d 227, 235 (Tex.

Crim. App. 1995). Police officers do not violate either the state or federal constitution by

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approaching an individual on the street or in another public place and questioning him. Perez, 85

S.W.3d at 819.

                 In this case, the officers observed erratic driving. To be sure, an abrupt lane change

across two lanes may not be a traffic violation sufficient to trigger a traffic stop. See Hernandez v.

State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d) (vehicle crossing a lane marker a

single time did not support reasonable suspicion of driver’s intoxication). But see Cook v. State, 63

S.W.3d 924, 928 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Dowler v. State, 44 S.W.3d

666, 670-71 (Tex. App.—Austin 2001, pet. ref’d). But the officers did not initiate a stop. As the

trial court judge observed, appellant and her companion “stopped themselves.” The only question

remaining then is whether the officers were permitted to approach the vehicle to investigate further.

We hold that they were entitled to approach and make the inquiry as they did.

                 Asking questions is an essential part of police investigations. Hiibel v. Sixth Judicial

Dist. Court, 542 U.S. 177, 185 (2004); see also Adams v. Williams, 407 U.S. 143, 146 (1972) (“A

brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo

momentarily while obtaining more information, may be most reasonable in light of the facts known

to the officer at the time.”).

                 The officer did not violate either the Fourth Amendment of the United States

Constitution or Article 1, Section 9 of the Texas Constitution by merely approaching appellant to

ask her questions after she had stopped on the street. See, e.g., Terry, 392 U.S. at 31 (Harlan, J.,

concurring); Florida v. Royer, 460 U.S. 491, 497 (1983); Perez, 85 S.W.3d at 819. Indeed, when

the officer first approached and questioned the occupants of the car by inquiring, “What’s going



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on?,” no seizure had occurred and thus appellant’s constitutional safeguards were not invoked.

Terry, 392 U.S. at 19 n.16 (“Obviously, not all personal intercourse between policemen and citizens

involve ‘seizures’ of persons. Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has

occurred.”).

                Even accepting as credible the testimony of the defense witness, the officers’ conduct

was no more intrusive than necessary to effectuate the investigative inquiry allowed by the Terry line

of cases. See Royer, 409 U.S. at 504. The officer’s response and questioning was a common-sense

inquiry and, under the totality of the circumstances, did not violate either the state or federal

constitution.


                                          CONCLUSION

                Given the totality of the circumstances, we hold that the trial court did not err in

overruling the motion to suppress. The judgment of the trial court is affirmed.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: June 30, 2006

Do Not Publish


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