                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00547-CR

FREDDY LEE KINDRED                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


                                     ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                     ------------

                       MEMORANDUM OPINION1
                                     ------------

                                  I. Introduction

      After an elderly homeowner called 911 to report an attempted burglary, a

Fort Worth police officer saw Appellant Freddy Lee Kindred walking nearby; his

pockets bulged and he was carrying two full bags.      Kindred was ultimately

arrested for and convicted of burglarizing a home not far from the 911 caller’s

residence and sentenced to forty years’ confinement. In three issues, Kindred

appeals his conviction, complaining that the trial court erred by denying his
      1
      See Tex. R. App. P. 47.4.
motion to suppress and his request for an article 38.23 instruction and by

overruling his objection to the 911 caller’s testimony about extraneous acts. We

affirm.

                                II. Suppression

      In his first issue, Kindred argues that the trial court erred by denying his

motion to suppress.

A. Suppression Hearing

      Fort Worth Police Officer Martin Chazaretta was the only person to testify

at the suppression hearing. He stated that on May 9, 2012, at around 11:00

a.m., he received a dispatch on a residential burglary call to a home on East

Mulkey Street, which he described as an older, high-crime, predominantly

minority neighborhood.    The homeowner told him and Officer Martinez, who

arrived in a separate vehicle, that a black male in a dark-colored skull cap had

tried to remove the air conditioning unit from her window.

      After the two officers searched the homeowner’s backyard and the

surrounding area, Officer Martinez was sent on another call, and Officer

Chazarreta drove down East Mulkey Street towards the Interstate 35 service

road. He spotted a black male wearing a dark skull cap and carrying two large

bags containing “quite a bit of items”; one of the bags was pink and the other was

green.    Officer Chazarreta also noticed that the man’s pants pockets “were

bulging with items.” The man, whom Officer Chazaretta identified as Kindred,

was walking on the service road around a half a block from the house on East

                                        2
Mulkey Street. Officer Chazaretta said that the skull cap was unusual because it

was May and warm outside.

      Officer Chazarreta did not activate his patrol car’s overhead lights or do

anything to get Kindred’s attention other than pull up next to him, roll down the

passenger-side window, and ask—from five or six feet away—“Can I talk to

you?” After Kindred assented, Officer Chazarreta told Kindred that he matched

the description of a burglar, asked him what was in the bags, and asked if he

could look inside the bags. Kindred told him that he could look in the bags.

Officer Chazarreta exited his vehicle and, when he looked in the bags, saw a

laptop computer, a PS3 with game controllers, a box of men’s cologne, and a

screwdriver. Officer Chazaretta asked Kindred where he had obtained the items

that were in the bags, and Kindred told him that he had taken them from his

grandmother’s house on East Mulkey Street.

      Officer Chazaretta asked Kindred for his grandmother’s phone number or

address to verify what Kindred had told him, but Kindred told him that he did not

have either. At that point, Officer Chazaretta called for additional units and asked

Kindred what he had in his pants pockets. Instead of telling Officer Chazaretta

what was in his pants pockets, Kindred pulled out a small jewelry box and

handed it to him. When Officer Chazaretta asked him what was in the box,




                                         3
Kindred told him that it was a gold ring, but when the officer opened the box, he

found a lapel pin with “FMI” in red letters.2

      Officer Chazaretta offered to drive Kindred down East Mulkey so that he

could speak with Kindred’s grandmother, and he asked Kindred to sit in the back

seat of the patrol vehicle. Investigating the laptop led to the discovery that a

house behind the original complainant’s house had been burglarized; when those

homeowners identified some of the items of property in Kindred’s possession and

said that they had not given him permission to enter their house and take the

items, Officer Chazaretta arrested Kindred for burglary.3

      At the conclusion of Officer Chazeretta’s testimony, the prosecutor argued

that Kindred and the officer had had a consensual encounter until Kindred’s

responses, along with the other facts and circumstances, triggered reasonable

suspicion to detain him. Kindred replied that it was not a consensual encounter,

that he was stopped and detained prior to sufficient evidence to support




      2
       During his direct examination, Officer Chazerreta testified that when he
saw the laptop, gaming device, and cologne, he felt that he had reasonable
suspicion to detain Kindred for further investigation. However, during cross-
examination, he stated that he believed he had reasonable suspicion based on
the burglar’s description, the items Kindred had on him, the fact that Kindred did
not know what was in the jewelry box, and that Kindred could not give a phone
number or address for his grandmother.
      3
       Prior to Officer Chazaretta’s testimony during trial about the bags’
contents, Kindred reurged his objections made during the suppression hearing,
and the trial court again overruled them.

                                           4
reasonable suspicion, and that all of the evidence should therefore be

suppressed.

B. 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); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor, such as whether a given

set of historical facts amounts to a consensual encounter or a detention under

the Fourth Amendment. See Amador, 221 S.W.3d at 673; Estrada v. State, 154

S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–

53 (Tex. Crim. App. 2002); see also Johnson v. State, 414 S.W.3d 184, 192

(Tex. Crim. App. 2013) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.

Crim. App. 2008)).

C. Consensual Encounter

      Kindred contends that once Officer Chazaretta told him that he matched

the description of a burglary suspect and wanted to look in the bags, the

encounter was no longer consensual because a reasonable person would no

longer have felt free to leave. He also argues that Officer Chazaretta lacked

justification at the inception of his detention because the only reason articulated

                                         5
by Officer Chazaretta for the stop was that Kindred matched the description that

he had been given of a burglar in the neighborhood.

      Courts recognize three distinct types of interactions between police and

citizens: (1) consensual encounters, which require no objective justification; (2)

investigatory detentions, which require reasonable suspicion; and (3) arrests,

which require probable cause.       See Johnson, 414 S.W.3d at 191; State v.

Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). As explained by the

court of criminal appeals in Woodard,

      Consensual police-citizen encounters do not implicate Fourth
      Amendment protections. Law enforcement is free to stop and
      question a fellow citizen; no justification is required for an officer to
      request information from a citizen. And citizens may, at will,
      terminate consensual encounters. Even when the officer did not
      communicate to the citizen that the request for information may be
      ignored, the citizen’s acquiescence to an official’s request does not
      cause the encounter to lose its consensual nature. Courts consider
      the totality of the circumstances surrounding the interaction to
      determine whether a reasonable person in the defendant’s shoes
      would have felt free to ignore the request or terminate the
      interaction. If it was an option to ignore the request or terminate the
      interaction, then a Fourth Amendment seizure has not occurred.

341 S.W.3d at 411 (citations omitted).

        Among all the circumstances of the encounter, “the officer’s conduct is

the most important factor when deciding whether an interaction was consensual

or a Fourth Amendment seizure.” Id. While no bright-line rule governs when a

consensual encounter becomes a seizure, factors suggesting that police conduct

implicates a Fourth Amendment seizure include the presence of several officers,

the use of sirens or flashers, tone of voice or words indicating that compliance is

                                         6
necessary, display of weapons, use of a police car to block the defendant’s

movement, touching the defendant physically, and retention of identification

documents. Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 1980

(1988); Garcia-Cantu, 253 S.W.3d at 243 n.35.

      Taking into account the totality of the circumstances, we hold that the

contact between Kindred and Officer Chazaretta was a consensual encounter.

Officer Chazaretta testified that he pulled his police car beside Kindred, rolled

down his passenger window, and asked from a distance of five or six feet, “Can I

talk to you?” Kindred assented, and Officer Chazaretta informed him that he

matched the description of a possible burglary suspect and asked him what was

in the bags and if he could take a look inside. He did not exit his vehicle until

Kindred agreed to the request.

      The record does not reveal any other factors indicative of a detention

implicating Fourth Amendment protections, such as “the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of

the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.”       United States v.

Mendenhall, 446 U.S. 544, 554–55, 100 S. Ct. 1870, 1877 (1980). Instead, the

record reflects that Officer Chazaretta was the only officer present at the initial

contact, did not turn on his lights or siren, did not block Kindred’s movement or

order him to stop, did not display his weapon, and was conversational, not

commanding. See Chesternut, 486 U.S. at 575, 108 S. Ct. at 1980 (holding no

                                        7
seizure occurred when officer accelerated and briefly drove alongside

defendant). But cf. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)

(holding detention occurred when officer shined patrol car lights in defendant’s

direction and said, in manner that sounded like an order, “[C]ome over here and

talk to me”); Garcia-Cantu, 253 S.W.3d at 245–49 (holding detention occurred

when officer blocked defendant’s exit with his patrol car and used “authoritative,

commanding voice and demeanor that brooked no disagreement”); Hudson v.

State, 247 S.W.3d 780, 785–86 (Tex. App.—Amarillo 2008, no pet.) (holding that

activation of patrol car lights caused pedestrian to yield to officer’s show of

authority).   Without such evidence of coercive police conduct, an “otherwise

offensive contact between a member of the public and the police cannot, as a

matter of law, amount to a seizure of that person.” Woodard, 341 S.W.3d at 413

(citing Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877). Further, the test is

whether a reasonable person, not a timid person, would feel free to terminate the

encounter, see State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999),

and feelings of discomfort, embarrassment, and inconvenience do not, standing

alone, amount to official coercion or seizure of a person. See Woodard, 341

S.W.3d at 413; Garcia-Cantu, 253 S.W.3d at 243; Velasquez, 994 S.W.2d at

679.

       Taking into account the totality of the circumstances surrounding this

event, we conclude that the contact between Kindred and Officer Chazaretta was

a consensual encounter until Officer Chazaretta searched the bags and

                                        8
developed reasonable suspicion to detain Kindred. See Johnson, 414 S.W.3d at

191; Woodard, 341 S.W.3d at 413; see also Florida v. Bostick, 501 U.S. 429,

434, 111 S. Ct. 2382, 2386 (1991) (stating that so long as the encounter is

consensual in nature, no reasonable suspicion is required).       Accordingly, we

overrule Kindred’s first issue.

                        III. Extraneous Offense Evidence

      In his second issue, Kindred complains that the trial court abused its

discretion by allowing the homeowner who called 911 to testify about extraneous

acts that were highly prejudicial and only slightly probative because he was not

charged with burglarizing her home. He argues that her testimony was only

offered to show why the police were searching the area and that the officers’

reason for the search could have been given “without getting into the details.”

      A trial court’s erroneous admission of evidence will not require reversal

when other such evidence was received without objection, either before or after

the complained-of ruling. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex.

Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011); see also Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (stating that improper admission of

evidence is harmless when other such evidence is admitted without objection).

This rule applies whether the other evidence was introduced by the defendant or

the State. Leday, 983 S.W.2d at 718.

      Here, before the homeowner testified that she had seen a black male

wearing a black stocking cap enter her bedroom through the window, Kindred

                                         9
asked for a running objection to testimony about this extraneous offense based

on rules of evidence 401, 404(b), and 403.         The trial court overruled his

objection.

      Following the homeowner’s testimony, Officer Chazaretta testified that he

had spoken with the homeowner when he responded to the 911 call and that she

described the attempted burglar as a black male wearing a black stocking or skull

cap. Officer Heckart also testified that he and other officers responded to the

area after the homeowner “had called in that somebody had crawled through her

back window.” Although Kindred had requested a running objection during the

homeowner’s testimony, he did not object to the two officers’ testimonies, which

contained information nearly identical to that delivered through the homeowner’s

testimony. See Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996)

(stating that a running objection is not appropriate to preserve error across

different witnesses); see also Estrada, 313 S.W.3d at 302 n.29 (noting that “any

preserved error in the admission of State’s Exhibit 74 was harmless in light of the

proper admission into evidence of very similar State’s Exhibits 73 and 75”).

      Accordingly, even if the trial court erred by admitting the homeowner’s

testimony, such error was harmless in light of Kindred’s failure to object to the

substantially similar testimony of Officers Chazaretta and Heckart. See Estrada,

313 S.W.3d at 302 n.29; Leday, 983 S.W.2d at 718. Therefore, we overrule

Kindred’s second issue.



                                        10
                          IV. Article 38.23 Instruction

      In his third issue, Kindred argues that the trial court erred by not including

an article 38.23(a) instruction on the suppression of evidence.

      Code of criminal procedure article 38.23(a) prohibits the admission of

evidence against an accused in a criminal trial if the evidence was obtained in

violation of state or federal constitutions or laws. Tex. Code Crim. Proc. Ann. art.

38.23(a) (West 2005). The statute further provides:

      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Id.   A defendant's right to the submission of jury instructions under article

38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).              To be

entitled to an article 38.23(a) instruction, the defendant must show that (1) an

issue of historical fact was raised before the jury, (2) the fact was contested by

affirmative evidence at trial, and (3) the fact is material to the constitutional or

statutory violation that the defendant has identified as rendering the particular

evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.

App. 2012).

      The only alleged factual dispute Kindred points to in the record concerns

whether Officer Chazaretta testified that he saw Kindred “coming from the alley”

                                        11
or “coming from the direction of the alley.”     On direct examination, Officer

Chazaretta testified, “It appeared to me he came from the alley on East Mulkey.”

On cross-examination, Kindred attempted to create a contradiction during the

following exchange:

      Q. So you think he’s coming from the direction of the alley?

      A. That’s correct. It appeared to me.

      Q. But a moment ago you testified it appeared he was coming from
      the alley; is that right?

      A. Yes.

      Q. So do you need to change your testimony to say that he
      appeared to be coming from the direction of the alley; is that a fair
      change?

      A. I’m sorry?

      Q. Okay. A moment ago you testified that he appeared to be
      coming from the alley. Do you recall that?

      A. Yes.

      Q. And now you’re telling us that what you mean is he appeared to
      be coming from the direction of the alley?

      A. It appeared to me he was coming from the direction of the alley,
      yes.

      Q. So if you said a moment ago that he appeared to be coming from
      the alley, do you need to change your testimony to say he appeared
      to be coming from the direction of the alley?

      A. No.

      Q. So in your opinion, coming from the direction of a street is just
      the – is satisfaction to you that he is coming out of that alley?


                                       12
      A. I didn’t say I observed him coming from the alley. I said it
      appeared to me he was coming from the alley, from the direction of
      the alley.

      Q. This is my last question, and we’ll move on. So you now deny
      that you testified a moment ago that he appeared to be coming from
      the alley? Do you deny saying that?

      A. I stated it appeared to me he was coming from the direction of
      the alley.

      Although Kindred argues that the testimony above reveals a “highly

contested issue” in the record, we find that this testimony does not create a

disputed issue of fact under the most liberal of readings. See Garza v. State,

126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (explaining that mere insinuations by

appellant’s attorney that no inventory slip was made, in light of testimony by

officers that such a slip did indeed exist, did not raise a fact issue as to the

existence of the inventory slip). Further, Officer Chazaretta repeatedly asserted

that his original testimony was an accurate representation of what he had

observed, and nothing in the record affirmatively contested his version of events.

See Robinson, 377 S.W.3d at 719 (holding that the disputed fact must be

affirmatively contested for appellant to be entitled to an article 38.23 instruction).

Furthermore, whether Officer Chazaretta saw Kindred “coming from the alley” or

“coming from the direction of the alley” would not be considered a fact material to

determining whether his initial interaction with Kindred was consensual.         See

Madden, 242 S.W.3d at 509–10.




                                         13
      Having determined that the record does not contain a disputed issue of

fact that is material to Kindred’s claim, we hold that the trial court did not err by

denying Kindred’s request for an article 38.23 instruction. Therefore, we overrule

Kindred’s third issue.

                                  V. Conclusion

      Having overruled all of Kindred’s issues, we affirm the trial court’s

judgment.




                                                    PER CURIAM


PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 22, 2014




                                         14
