Affirmed and Majority and Concurring Opinions filed December 13, 2011.




                                           In The

                       Fourteenth Court of Appeals

                                   NO. 14-10-01089-CR


                             JACKIE JOHNSON, Appellant

                                                V.

                           THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court at Law No. 11
                                Harris County, Texas
                           Trial Court Cause No. 1686082


                    CONCURRING                       OPINION

       I disagree with the conclusion of the majority that the denial of appellant’s motion
to suppress should be affirmed solely because the interaction between appellant and the
police sergeant was an encounter. However, as I conclude that the trial court did not
abuse its discretion in determining that the interaction was a detention supported by
reasonable suspicion, I concur in the result.

       I agree with the majority’s presentation of the controlling principle of
constitutional law—there are three, distinct categories of interactions between police
officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v.
Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011); State v. Castleberry, 332
S.W.3d 460, 466 (Tex. Crim. App. 2011). If the interaction rises to the level of a
detention, the Fourth Amendment’s search and seizure restrictions govern and the State
must show reasonable suspicion to support the temporary seizure; a mere encounter is not
subject to any Fourth Amendment requirements or restrictions. State v. Garcia-Cantu,
253 S.W.3d 236, 238 (Tex. Crim. App. 2008).

        The majority concludes the interaction between appellant Jackie Johnson and
Sergeant Stephen Hendrie was an encounter, for which no further constitutional inquiry is
necessary. I disagree. In particular, I disagree with the evidentiary analysis that permits
the majority to reach that legal conclusion. The evidentiary analysis is flawed because it
rests entirely upon inferred facts—as if in deference to the trial court—despite the reality
that the trial court expressly reached the opposite legal conclusion.

        It is true that when the trial court does not make express findings of fact, we view
all of the evidence in the light most favorable to the trial court’s ultimate ruling and infer
the necessary factual findings that support that ruling if the record evidence supports
these implied fact findings. See id. at 241. However, here, the trial court did make an
express finding on a mixed question of fact and law: the trial court found that a detention
rather than an encounter had occurred.1 We must afford deference to the trial court’s
evaluation of credibility and demeanor when such an evaluation resolves disputed issues
of fact and disposes of the legal question. See Kelly v. State, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).

        Therefore, on this point, we are not to indulge, for example, the inference that the
trial court believed Hendrie’s version of the facts and that Hendrie’s police car did not
completely block appellant’s departure, or that Hendrie did not call to appellant

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           As the majority notes, the trial court specifically articulated that a ―minimal detention‖ had
occurred when issuing his ruling. We may not disregard this finding simply because it is an oral
pronouncement. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (holding that a trial
court’s findings and conclusions are sufficient if they are ―recorded in some way, whether written out and
filed by the trial court, or stated on the record at the hearing‖).

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forcefully, or that Hendrie did not pull his pistol as he exited the vehicle—all credibility
determinations that would favor a finding that the interaction was an encounter. We must
infer the opposite in favor of the trial court’s finding that the interaction was a detention.
Those inferences are supported in the record.           Moreover, such inferences and, in
particular, the inference that Hendrie’s vehicle blocked appellant’s departure, support a
finding of a detention. See Garcia-Cantu, 253 S.W.3d. at 246. Therefore, it was not an
abuse of discretion for the trial court to find that the interaction was a detention.

       Nonetheless, the trial court did not abuse its discretion in denying the motion to
suppress. A temporary detention is lawful when the officer has reasonable suspicion to
believe that an individual is violating the law. See Carmouche v. State, 10 S.W.3d 323,
328 (Tex. Crim. App. 2000) (holding that the police officer must be able to ―point to
specific and articulable facts, which, taken together with rational inferences from those
facts, reasonably warrant the intrusion‖).         The articulable facts must show unusual
activity, a connection between the detainee and the activity, and some indication that the
unusual activity is related to a crime. See Martinez v. State, 348 S.W.3d 919, 923 (Tex.
Crim. App. 2011). A finding of articulable facts may be upheld upon a showing either
that the person has engaged in, or soon will be engaging in, criminal activity. Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

       Sergeant Hendrie provided the following specific facts supporting his investigative
detention: Hendrie was responding to a 30-minute-old 911 call from a resident that there
was a suspicious black male wearing a dark shirt and standing near the Copper Cove
Apartments leasing office at 12901 Brant Rock Drive. He attempted unsuccessfully to
reach the complainant by telephone. The Copper Cove Apartments are gated and the
leasing office is outside the gate. Hendrie drove by the leasing office and saw no one
standing outside, but determined that he should drive through the complex to complete
the investigation. Hendrie was in the process of making the u-turn necessary to enter the
apartments when he noted a vehicle backed into a parking space with its headlights on.
The vehicle was very close to the leasing office. Therefore, as he made the u-turn,

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Hendrie turned on his high beam spotlight to shine it into the parked vehicle. He noted a
black male in a dark shirt sitting in the car. As he pulled up, he also noted the engine on
the vehicle was running. Because Hendrie was aware that the Copper Cove Apartments
have a history of robberies, and his experience told him that the vehicle was parked in the
same way getaway vehicles do, Hendrie pulled his car into the parking area to the corner
of the running vehicle, at least partially blocking the exit of the vehicle.

       Thus, Hendrie articulated receipt of a summary of a 911 call that raised unusual
activity; that is, a resident of the complex believed a suspicious black man in a dark shirt
was lurking just outside of the apartment gate nearing the leasing office.          Hendrie
articulated a connection between the activity and the detainee; that is, appellant, a black
male, was wearing a dark shirt, sitting in a running vehicle, backed into a parking space,
adjacent to where a suspicious individual had been reported by a resident. Finally,
Hendrie articulated a reasonable suspicion that appellant’s activity was related to an
imminent crime; that is, knowing the complex to be a frequent location of robberies, he
suspected that appellant’s vehicle, backed into a parking spot, outside the gate, with lights
on and engine running, was a robbery getaway vehicle.

       Based on the foregoing, I also conclude the trial court did not abuse its discretion
in denying Johnson’s motion to suppress, but under an alternative analysis.




                                    /s/            Sharon McCally
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally. (Brown, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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