                                   NO. 07-00-0019-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                SEPTEMBER 5, 2001
                          ______________________________

                                JAMES EDWARD HOSE,

                                                         Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

             FROM THE 292ND DISTRICT COURT OF DALLAS COUNTY;

               NO.F98-69901-IV; HON. HENRY WADE, JR., PRESIDING
                       _______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

       James Edward Hose, appellant, appeals his conviction for theft of property.

Through three points of error he challenges 1) the trial court’s refusal to suppress evidence

allegedly obtained from an impermissible detention and 2) the legal and factual sufficiency

of the evidence underlying the jury’s verdict. We overrule each point and affirm the

judgment.

                         Point One – Suppression of Evidence

       Appellant contends that the trial court should have suppressed evidence obtained

by the police. This is allegedly so because “when the officer made contact with [him] there
was a ‘stop’ or temporary seizure for investigative detention,” and the “initial detention” was

not supported by “[]sufficient articulable facts.” We disagree.

        Standard of Review

        The standard of review applicable to reviewing a court’s refusal to grant a motion

to suppress is one of abused discretion. Benitez v. State, 5 S.W.3d 915, 918 (Tex.

App.–Amarillo 1999, pet. ref’d). Rather than describe this well-established standard, we

cite the parties to Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) for an

explanation of same.

        Similarly well-settled is the standard used in determining whether a police officer has

reasonable suspicion to conduct a temporary detention. That standard was recently

addressed in Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997), and we refer the

litigants to that opinion for an explanation of same.1

        Application of Standard

        The officer who initially confronted appellant had been assigned to work, under

cover, in a “crime prevention theft and burglary and robbery prevention detail around the

parking lots that surround the State Fair” in Dallas. The day before actually confronting

appellant, the officer had seen appellant and others cruising, at night, through the parking

lots being patrolled. On the day of the confrontation, appellant was again seen at the

parking lots. This time, however, he was first seen afoot “flagging” cars into a lot.2 Then



        1
         W e do note, howeve r, that the “as consistent with innocent activity as with criminal activity” construct
repe atedly mentioned by appellant was rejected as a “viable test for determining reasonable suspicion” in
W oods. W ood s v. S tate, 956 S.W .2d 33, 38 (Tex . Crim. App . 1997).

        2
          “Flagging” con sists of wa ving an item (here, a red rag ) to gain the a ttention of drivers and induce
thos e drive rs to p ark in the lot.

                                                        2
the officer, along with his colleague, saw appellant enter a vehicle with several other

individuals, drive to another lot, exit the vehicle, and resume “flagging” cars. The other

individuals with appellant also exited the car. But, rather than help with “flagging” down

vehicles, they proceeded to look inside the cars that had parked there before their arrival.

       At least one of the officers at the scene knew that a city permit was needed to park

vehicles in these particular lots. So too did he know that no permits had been issued

authorizing anyone to park cars in the first lot at which appellant was seen that day.

       Having witnessed the foregoing events, the officers called for assistance and

headed toward the lot wherein appellant was located. As they approached in their

unmarked vehicle, appellant “flagged” them and asked for $5. At that point, the officers

stopped the vehicle. One exited, flashed his police badge and asked to see appellant’s

identification and parking permit. In attempting to comply, appellant “produced from his

pocket a stack of cards.” Atop the stack was a credit card. The officer could see the face

of the card and noted the name imprinted thereon was “Barbara.” Upon “realiz[ing] that

[appellant] didn’t look like somebody named Barbara, . . . [he] asked if that was

[appellant’s] card.” Appellant answered no and indicated that he obtained the item from

someone else. Thereafter, appellant produced from his back pocket a checkbook also

belonging to someone with the name “Barbara Frias.”

       The officer obtained the phone number of Ms. Frias from the checks and called

same. During their conversation, Barbara Frias told the officer that her purse had been

stolen the previous day and imparted to the officer a description of the person who had




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taken it. Upon concluding that the description imparted generally matched the appearance

of appellant, the latter was arrested.3

        Police officers, like any one else, are free to approach individuals in a public place

and ask questions, so long as the person is free to leave. Barnes v. State, 870 S.W.2d 74,

77 (Tex. Crim. App. 1993). They need neither probable cause nor reasonable suspicion

to do so. Furthermore, identifying themselves as a peace officer (without more) does not

convert the consensual encounter into a detention, id., nor does simply asking the

individual for identification. Holladay v. State, 805 S.W.2d 464, 471 (Tex. Crim. App.

1991). This is so because, as long as the encounter is consensual, the individual is free

to respond, ignore the queries, or leave. Here, appellant was in a public place when one

of the officers approached him, identified himself as a policeman, and asked appellant for

identification and a parking permit. Nothing of record indicates that appellant could not

have ignored the questions or left. Moreover, in responding to the questions asked of him,

appellant disclosed the credit card and checkbook of Frias.

        Given that appellant was standing in a public place, the officers did not need either

probable cause or reasonable suspicion to approach him and ask questions. And,

because nothing of record suggests that appellant was prevented from leaving or ignoring

the officer’s questions, we cannot say that “when the officer made contact with [him] there

was a ‘stop’ or temporary seizure for investigative detention” which violated any statutory

or constitutional prohibition. Accordingly, the trial court did not abuse its discretion in

refusing to suppress any evidence.


        3
         According to the arresting officer, appellant was arrested for driving from one lot to another
without a seatb elt and for lacking a parking pe rm it.

                                                      4
                        Point Two – Sufficiency of the Evidence

       Next appellant contends that the evidence is legally and factually insufficient to

support his conviction. This is allegedly so because the State failed to present sufficient

evidence establishing him as the one who committed the theft. We again disagree.

       Standard of Review

       The standard of review applicable to questions of legal and factual sufficiency are

well-settled and need no explanation. We find it adequate to merely cite the parties to King

v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) and Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996).

       Application of Standard

        Through an indictment, the State accused appellant of unlawfully, knowingly and

intentionally exercising control over the purse and contents therein of Barbara Frias without

Ms. Frias’ consent and with the intent to deprive Ms. Frias of the property. In support of

this allegation, we find the following evidence. First, when shown a photographic array of

potential suspects, Ms. Frias selected appellant’s picture. Second, she also stated, at trial,

that appellant looked like the person who took her purse. Third, appellant possessed her

credit card and checkbook a day after the theft.          Fourth, both the credit card and

checkbook were in her purse when it was taken. Combined, this constitutes some

evidence upon which a rational jury could find beyond reasonable doubt that appellant

committed the theft in question. And, while there may have been some discrepancies

between appellant’s visage and the description of the culprit initially given by Ms. Frias, that

evidence merely created a fact issue for the jury to resolve. Neither it or any other



                                               5
evidence rendered the verdict clearly wrong or manifestly unjust. Accordingly, we find the

evidence supporting the verdict both legally and factually sufficient.

       Accordingly, the judgment is affirmed.


                                                               Brian Quinn
                                                                  Justice

Do not publish.




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