Opinion filed May 23, 2019




                                     In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-17-00122-CR
                                 __________

                    CODY DEVON MCGEE, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                          Trial Court Cause No. 6836


                     MEMORANDUM OPINION
      Cody Devon McGee pleaded guilty to the state jail felony offense of
possession of a controlled substance. The trial court, in accordance with the plea
agreement, assessed Appellant’s punishment at confinement for two years. In a
single issue on appeal, Appellant contends that the trial court erred when it denied
Appellant’s motion to suppress evidence obtained during a warrantless search of
Appellant’s person incident to a temporary detention. We affirm.
      Before trial, Appellant filed a motion to suppress evidence—including, among
other things, 0.235 grams of methamphetamine—obtained incident to a temporary
detention. The trial court held a hearing on Appellant’s motion to suppress.
      Nick Shaginaw, a police officer with the Haskell Police Department, testified
for the State. Officer Shaginaw explained that, on the day of the offense, he and
another police officer were “patrolling” a residential neighborhood in Haskell
around 1:00 a.m. While on patrol, Officer Shaginaw saw two men walking “very
close” to the front of a Haskell school building that is located within the
neighborhood. That building, the “Head Start” building, is owned by the Haskell
Independent School District and is across the street from the Haskell elementary
school. The Head Start building and the elementary school are near residences.
      When Officer Shaginaw initially saw the two men, it appeared to him as
though they had “come out of the front part of the building.” Officer Shaginaw
specifically saw the two men in the “general vicinity right there by the front door,
the foyer area.”   The two men, according to Officer Shaginaw, subsequently
“[t]urned and put their shoulders forward and kind of walked like they didn’t want
[him] to see who they were.” Officer Shaginaw was sure that one of the men, who
was later identified as Appellant, had seen him.
      Officer Shaginaw thought that it was unusual that the two men were outside
the Head Start building at 1:00 a.m. The school was closed, and on his previous
patrols, he had never seen anyone in or around the building at that time of the
morning. In addition, Officer Shaginaw noticed that the two men were not walking




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on the edge of the street as a person normally would when traveling through a
neighborhood; instead they were “very close” to the building.
      Officer Shaginaw pulled his vehicle next to the men to “make contact.” He
testified that, when he pulled his vehicle next to the men, “they kept walking.”
Officer Shaginaw felt that this was “unnatural” because “[i]f someone pulls up
beside you at 1:00 in the morning, you’re going to turn and look at them.” Next,
Officer Shaginaw “yelled at them out the window to come back towards the vehicle”
since he wanted to “see what they were doing there” and ensure that “they weren’t
breaking into the school.” According to Officer Shaginaw, the Haskell high school,
around this period of time, had been the target of several burglaries.
      The two men complied with Officer Shaginaw’s directive and came back. As
they approached him, Officer Shaginaw immediately recognized one of the men as
Appellant and the other as Braxton Jackson. Officer Shaginaw had recognized
Appellant from prior assault cases, “generally” from the “drug world” in Haskell,
and also as a suspect in prior burglaries.
      At this point, Officer Shaginaw and the officer who was with him got out of
their vehicle.   Officer Shaginaw saw that a crowbar was protruding out of
Appellant’s waistband. He thought that this was “odd.” When Officer Shaginaw
asked Appellant about the crowbar, Appellant told Officer Shaginaw that he had the
crowbar for self-defense. Officer Shaginaw removed the crowbar from Appellant’s
waistband, placed him in handcuffs and patted him down for other weapons.
Officer Shaginaw testified that he placed Appellant in handcuffs for officer safety
and that, at this point, Appellant was detained but not under arrest.
      During the pat-down, Officer Shaginaw felt a hard object in Appellant’s left,
rear pocket. He asked Appellant what the object was, and Appellant said that it was




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a sunglass case that contained “a pipe.” Officer Shaginaw then removed the sunglass
case, looked inside of it, and found, among other things: baggies that contained a
crystalline residue, a glass pipe that contained a white crystalline substance, and a
baggie that contained a crystalline substance. Officer Shaginaw believed that the
crystalline substances and residue that he saw in the sunglass case were
methamphetamine.       Officer Shaginaw also searched a small black bag on
Appellant’s person; the bag contained “digital scales” that had crystalline residue on
top of the pressure plates of the scales. In addition, Officer Shaginaw searched
Appellant’s backpack in which he found, among other things, a large twelve-inch
blade and a “torch lighter.” Lab tests subsequently confirmed that the crustalline
substance, which weighed 0.235 grams, contained methamphetamine.
       Appellant also testified at the hearing on the motion to suppress. Appellant
testified that, on the night of the offense, he was walking from Jackson’s home to
another home where he was “staying.” When defense counsel asked Appellant
whether he had come from the Head Start building, Appellant said: “No. I was
walking. I was turning towards the building” and “as we seen the headlights coming
down the street, we was cutting across the grass, instead of just going straight, and -
- because there’s only a left or a right turn. And so we was going right,” and that is
when “he pulled up in front of us and told me to stand off to the side and put my
hands on my head.” Appellant also explained that he was not walking on the street
because he did not want to be hit.
      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). When
we review a ruling on a motion to suppress, we apply a bifurcated standard of review.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We afford almost




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total deference to the trial court’s determination of historical facts and of mixed
questions of law and fact that turn on the weight or credibility of the evidence. Id.;
Martinez, 348 S.W.3d at 922–23. We review de novo the trial court’s determination
of pure questions of law and mixed questions of law and fact that do not depend on
credibility determinations. Brodnex, 485 S.W.3d at 436. When the trial court makes
express findings of fact, we first determine whether the evidence, when viewed in
the light most favorable to the trial court’s ruling, supports those findings.
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). “We uphold the
trial court’s ruling if it is supported by the record and correct under any theory of
law applicable to the case.” State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App.
2008).
      A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably conclude that the detained person is, has been, or soon
will be engaged in criminal activity. Wade v. State, 422 S.W.3d 661, 668 (Tex.
Crim. App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.
2011). This is an objective standard that disregards the actual subjective intent of
the officer and looks, instead, to whether there was an objectively justifiable basis
for the detention. Wade, 422 S.W.3d at 668; Derichsweiler, 348 S.W.3d at 914. The
standard also looks to the totality of the circumstances; individual circumstances
may seem innocent enough in isolation, but if the circumstances combine to
reasonably suggest the imminence of criminal conduct, an investigative detention is
justified. Wade, 422 S.W.3d at 668; Derichsweiler, 348 S.W.3d at 914. The
standard requires only “some minimal level of objective justification” for the stop.
Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010) (quoting United




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States v. Sokolow, 490 U.S. 1, 7 (1989)). Whether the facts known to the officer
amount to reasonable suspicion is a mixed question of law and fact subject to de
novo review. State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012).
      Here, Appellant and the State dispute the point in time at which
Officer Shaginaw detained Appellant. Appellant argues that he was detained when
Officer Shaginaw “yelled at them out the window to come back towards the vehicle.”
The State, however, argues that Appellant was not detained at this point; rather, the
State insists that the initial interaction between Appellant and Officer Shaginaw—
wherein Officer Shaginaw “yelled” at Appellant to “come back” and Appellant
complied—was merely a voluntary encounter. The State asserts that Appellant was
detained only when Officer Shaginaw recognized Appellant as a suspect in prior
burglaries and only when Officer Shaginaw saw the crowbar in Appellant’s
waistband.
      Police and citizens generally engage in three distinct types of interactions:
consensual encounters, investigative detentions, and arrests. Wade, 422 S.W.3d at
667; State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Unlike
an investigative detention and an arrest, consensual police-citizen encounters do not
implicate Fourth Amendment protections. Wade, 422 S.W.3d at 667; Woodard, 341
S.W.3d at 411. Such encounters occur when an officer approaches a person to ask
questions. See Florida v. Bostick, 501 U.S. 429, 434 (1991). Police officers may
ask questions of an individual, ask to see identification, or request consent to search
as long as the officer does not convey the message that compliance with their request
is required. State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999);
Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).




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      Conversely, an investigative detention occurs when a person yields to the
police officer’s show of authority under a reasonable belief that he is not free to
leave. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). When we review
whether an interaction constituted an encounter or a detention, we focus on whether
the officer conveyed a message that compliance with the officer’s request was
required. Id. The question is whether a reasonable person in the citizen’s position
would have felt free to decline the officer’s requests or otherwise terminate the
encounter. Id.
      We think that a reasonable person in Appellant’s position would not have
believed he was free to leave when Officer Shaginaw “yelled” at Appellant “to come
back towards the vehicle.” See U.S. v. Mendenhall, 446 U.S. 544, 554 (1980)
(seizure can occur when officer employs “the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled”); Crain,
315 S.W.3d at 52 (officer’s “act of shining his patrol car’s overhead lights in the
[defendant’s] direction, coupled with his request-that-sounded-like-an-order, to
‘come over here and talk to me,’ caused the [defendant] to yield to [the officer’s]
show of authority”). A reasonable person in Appellant’s position would believe that
he had to comply with Officer Shaginaw’s order or command. We hold that
Officer Shaginaw detained Appellant when he “yelled” at Appellant to “come back
towards the vehicle.” Therefore, in order for that detention to have been legal,
Officer Shaginaw must have had reasonable suspicion that Appellant had engaged
in criminal activity or was soon going to engage in criminal activity.
      To determine whether Officer Shaginaw had reasonable suspicion, we look to
the facts available to him at the time of the detention, including “the time of day”
and the “level of criminal activity in an area.” Crain, 315 S.W.3d at 52–53; Brodnex,




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485 S.W.3d at 438. We note, however, that “[n]either time of day nor level of
criminal activity in an area are suspicious in and of themselves; the two are merely
factors to be considered in making a determination of reasonable suspicion.” Crain,
315 S.W.3d at 53; Brodnex, 485 S.W.3d at 438. Neither fact proves that a suspect
is engaged in any sort of criminal offense. Crain, 315 S.W.3d at 53. “In order for
these facts to affect the assessment of the suspect’s actions, the surroundings must
raise a suspicion that the particular person is engaged in illegal behavior.” Id.; see
also Klare v. State, 76 S.W.3d 68, 75 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d).
          When Officer Shaginaw detained Appellant, he had knowledge of the
following facts: (1) around 1:00 a.m., it appeared that Appellant and Jackson had
walked out of the front part of the Head Start building; (2) the Head Start building,
which is owned by the Haskell Independent School District, was closed; (3) there
had been prior burglaries at the Haskell high school around this time; (4) on his
previous patrols, he had not observed anyone at the Head Start building at that time
of night; (5) Appellant and Jackson were not walking on the edge of the street as a
person normally would when traveling through a neighborhood; instead, they were
“very close” to the building; and (6) Appellant and Jackson “turned and put their
shoulders forward and kind of walked like they didn’t want [him] to see who they
were.” 1




          1
         The State asks us to consider additional facts in our assessment of reasonable suspicion—namely
that Officer Shaginaw recognized Appellant as a prior burglary suspect and observed a crowbar in
Appellant’s waistband. We decline to do so. We only “look at the facts available to the officer at the time
of the detention.” Crain, 315 S.W.3d at 52–53. Officer Shaginaw learned of these facts only after he had
detained Appellant.




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        We hold that, based on the totality of the circumstances, Officer Shaginaw
had reasonable suspicion to detain Appellant. See Tanner v. State, 228 S.W.3d 852,
857–59 (Tex. App.—Austin 2007, no pet.). While people are free to walk through
residential neighborhoods late at night, see Crain, 315 S.W.3d at 46, 53–54,
Appellant’s conduct, the time of night, the location, and Officer Shaginaw’s
particularized knowledge raised a suspicion that Appellant had burglarized, or was
soon going to burglarize, the Head Start building. Therefore, we conclude that the
trial court did not abuse its discretion when it denied Appellant’s motion to suppress.
We overrule Appellant’s sole issue.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE
May 23, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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