                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                 Nos. 07-16-00158-CR, 07-16-00159-CR


                             CHELSEA MARIE GILBERT, APPELLANT

                                                     V.

                                 THE STATE OF TEXAS, APPELLEE

                          On Appeal from the County Criminal Court No. 2
                                       Tarrant County, Texas1
            Trial Court Nos. 1405019, 1405032, Honorable Carey Frank Walker, Presiding

                                          November 22, 2016

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


        After her motions to suppress were denied by the trial court, appellant, Chelsea

Marie Gilbert, entered open pleas of guilty to charges of driving while intoxicated,

possession of marijuana in an amount under two ounces, and criminal mischief. 2 The

trial court entered judgment finding appellant guilty of driving while intoxicated (appellate

cause no. 07-16-00158-CR) and sentencing her to incarceration for 180 days, and a

        1
          Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
        2
            Appellant’s appeal does not address the criminal mischief charge.
$500 fine. The sentence of incarceration was suspended and appellant was placed on

community supervision for a period of eighteen months. Appellant also appeals the trial

court’s deferral of adjudication on the charge of possession of marijuana (appellate

cause no. 07-16-00159-CR) and order that appellant complete a twelve-month term of

community supervision. By her appeal, appellant challenges the trial court’s denial of

her motions to suppress. We will affirm the judgment of the trial court.


                              Factual and Procedural Background


       While on patrol just before midnight on January 19, 2015, Officer Cleburne

Eardley of the Tarrant County Sheriff’s Office noticed a car parked in a church parking

lot. Because it was a cold and dark night and the parking lot was located in a high

crime area, Eardley decided to investigate. Eardley parked his patrol car approximately

twenty feet behind the vehicle in a manner that did not block in the vehicle.                     He

activated his overhead lights for a short period of time as a means to activate the in-

dash camera in his patrol vehicle but turned them off before approaching the vehicle.

Eardley did, however, position his spotlight in such a manner that it illuminated the cab

of the vehicle. He approached the open driver’s side window and asked if everything

was alright. Appellant, who was in the driver’s seat of the vehicle, said that she was

checking her GPS. Eardley asked appellant and her passenger for identification. When

he smelled the strong odor of alcohol emanating from appellant, Eardley had appellant

perform field sobriety tests.      Based on her performance on the field sobriety tests,

Eardley arrested appellant.3


       3
         Presumably, the marijuana was discovered in the search incident to arrest. However, this fact
was not developed during the suppression hearing or the plea proceedings.

                                                  2
       Appellant moved to suppress all evidence obtained as a result of the interaction

with Eardley on the basis that there was no reasonable suspicion to detain her and

community caretaking would not justify the encounter. After hearing the testimony of

Eardley and appellant’s passenger, the magistrate court that heard the matter denied

the motion. When appellant orally asked the magistrate court for findings of fact and

conclusions of law, the court stated,


       Well, based upon the testimony of the officer at night, time of day, empty
       parking lot, there is absolutely no reason the officer does not have the
       right to approach that vehicle either for a short investigative detention or
       for a public caretaking function to check upon the safety of the vehicles.
       That’s my findings of fact and conclusion of law.

Appellant moved the trial court to modify, correct, reject, and reverse the magistrate’s

decision. At the subsequent hearing, the trial court adopted the ruling of the magistrate

denying the motion to suppress.4


       After the trial court denied appellant’s motion, appellant entered open pleas of

guilty to each of the charged offenses. Following a brief hearing, the trial court found

appellant guilty of driving while intoxicated and deferred adjudication of guilt on the

possession of marijuana charge. The trial court also certified appellant’s right to appeal

in each cause and appellant timely filed the instant appeals.




       4
          While the trial court stated that it adopted the findings of the magistrate, a review of the
magistrate’s statement makes clear that it does not include any findings of fact but, rather, makes
conclusions of law that Eardley’s interaction with appellant was justified as community caretaking or
detention based on reasonable suspicion. As such, we will not treat this case as one in which the trial
court made findings of fact and conclusions of law.

                                                  3
       Appellant’s sole issue on appeal contends that the trial court erred when it denied

appellant’s motion to suppress evidence obtained from her unlawful detention by law

enforcement.


                                    Standard of Review


       An appellate court reviews a trial court’s ruling on a motion to suppress evidence

under a bifurcated standard of review. Abney v. State, 394 S.W.3d 542, 547 (Tex.

Crim. App. 2013). We must give almost total deference to a trial court’s determination

of historical facts supported by the record and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor, but review de novo the trial court’s

application of the law to the facts. See id.; Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). When, as here, the trial court does not make findings of fact, 5 we are

to infer the necessary factual findings that support the trial court’s ruling if the evidence,

viewed in the light most favorable to the ruling, supports the implied fact findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).


                                      Applicable Law


       The Fourth Amendment of the United States Constitution and Article I, Section 9,

of the Texas Constitution protect citizens against unreasonable searches and seizures

by government officials. See Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d

889 (1968); Franks v. State, 241 S.W.3d 135, 141 (Tex. App.—Austin 2007, pet. ref’d).

The Texas Court of Criminal Appeals has recognized three categories of interactions

between police and citizens: arrests, investigative detentions, and encounters. State v.


       5
           See n.4.

                                              4
Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Unlike arrests and investigative

detentions, which constitute seizures, an encounter is a consensual interaction which

the citizen may terminate at any time. State v. Bryant, 161 S.W.3d 758, 761 (Tex.

App.—Fort Worth 2005, no pet.); see Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim.

App. 1994) (en banc). So long as the person remains free to disregard the officer’s

questions and go about his business, the encounter is consensual and no seizure has

occurred.     See Gurrola, 877 S.W.2d at 302.         In determining whether the police

exercised sufficient force or authority to constitute a seizure, the totality of the police

conduct must be considered. See Garcia-Cantu, 253 S.W.3d at 243-44. A court must

“step into the shoes of the defendant” to assess whether, from an objective perspective,

the defendant would have felt free to leave.        Id. at 244.    The subjective intent or

motivations of the police officer is not taken into account when considering the totality of

the circumstances. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).


                                         Analysis


         The facts, when viewed in the light most favorable to the trial court’s ruling,

establish that Eardley’s initial approach was a consensual encounter.           Appellant’s

vehicle was parked in a church parking lot near midnight. See Merideth v. State, 603

S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980) (no detention for officer to

approach and knock on window of parked vehicle). Eardley pulled his vehicle behind

appellant’s vehicle in a manner that did not block appellant’s vehicle from being able to

exit. See Franks, 241 S.W.3d at 142 (no detention when police did not block avenue of

exit).   Eardley activated his overhead lights for no longer than twenty seconds but

turned them off before approaching appellant’s vehicle.           See Martin v. State, 104

                                             5
S.W.3d 298, 301 (Tex. App.—El Paso 2003, no pet.) (no detention when officer

activated overhead lights before approaching citizen).6 Eardley walked to the opened

driver’s side window of appellant’s vehicle and asked if anything was wrong and if he

could see identification from the occupants. See State v. Castleberry, 332 S.W.3d 460,

466 (Tex. Crim. App. 2011) (no detention for officer to request identification and

information from a citizen in a public place). Looking at the totality of the circumstances,

we conclude that, from an objective perspective, appellant would have felt free to leave.

See Garcia-Cantu, 253 S.W.3d at 244. As such, this interaction between Eardley and

appellant was an encounter rather than a seizure and, consequently, does not warrant

constitutional analysis. See Bryant, 161 S.W.2d at 761.


        Once Eardley began speaking to appellant, he smelled the strong odor of alcohol

emanating from appellant. As a result, Eardley had appellant perform standardized field

sobriety tests.     Based on her results on these tests, Eardley arrested appellant for

suspicion of driving while intoxicated. Appellant does not challenge Eardley’s authority

to perform the standardized field sobriety tests7 nor her subsequent arrest. As such, we

do not address that issue.


        6
         In its analysis, Martin quotes State v. Baldonado, 115 N.M. 106, 847 P.2d 751, 754 (N.M. Ct.
App. 1992), for the proposition that,

        We can conceive of many situations in which people in stopped cars approached by
        officers flashing their lights would be free to leave because the officers would be simply
        communicating with them to ascertain that they are not in trouble. Under such
        circumstances, depending on the facts, the officers may well activate their emergency
        lights for reasons of highway safety or so as not to unduly alarm the stopped motorists.

See Martin, 104 S.W.3d at 301.
        7
           In Zamora v. State, No. 04-09-00722-CR, 2010 Tex. App. LEXIS 8934, at *5-6 (Tex. App.—San
Antonio Nov. 10, 2010, no pet.) (mem. op., not designated for publication), the court held that the odor of
alcohol and bloodshot eyes were sufficient articulable facts establishing reasonable suspicion to justify
the officer having the defendant perform field sobriety tests.

                                                    6
                                      Conclusion


       For the foregoing reasons, we conclude that the trial court did not err in denying

appellant’s motion to suppress evidence. We overrule appellant’s sole issue and affirm

the judgments of the trial court.


                                                      Mackey K. Hancock
                                                         Justice




Do not publish.




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