                                   NO. 07-07-0154-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     MARCH 6, 2008

                          ______________________________


                           BENJAMIN HUDSON, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                  NO. 5635; HONORABLE KELLY G. MOORE, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Following a plea of guilty, Appellant, Benjamin Hudson, was convicted of possession

of methamphetamine. Punishment was assessed at eighteen months confinement in a

state jail facility, suspended in favor of five years community supervision, and a $750 fine.

By a sole issue, Appellant questions whether the trial court erred in denying his motion to
suppress evidence seized in violation of his constitutional rights under the Fourth

Amendment of the United States Constitution and Article I, § 9 of the Texas Constitution

and in violation of article 38.23 of the Texas Code of Criminal Procedure.1 We affirm.


                                   Factual Background


       The only witness to testify at the suppression hearing was Officer Gabriel Carrillo.

According to Carrillo, he was on patrol in full uniform on October 7, 2006, when he

observed Appellant walking across a field from a residential neighborhood at approximately

3:50 a.m. As Appellant neared the curb, Carrillo activated his patrol car lights and called

to him. When asked for identification, Appellant produced a social security card and a

plastic movie card. He also provided his name and date of birth. According to Carrillo,

Appellant’s eyes were glassy, and he was nervous and shaky. Carrillo questioned him

about the use of controlled substances, specifically, about smoking methamphetamine.

Carrillo placed Appellant in front of his patrol car and began a pat down search. He

“crushed” the outside of Appellant’s pockets and felt a box-like item which Appellant

claimed were cigarettes. As requested by Carrillo, Appellant removed the item and placed

it on the hood of the patrol car. The officer still noticed a bulge on the side of Appellant’s



       1
        Although Appellant’s issue and his Summary of Argument reference article 38.23
of the Texas Code of Criminal Procedure, no argument is presented based on that
authority. Thus, we do not analyze the merits of his issue as it pertains to article 38.23.
See Tex. R. App. P. 38.1(h). See also Cardenas v. State, 30 S.W.3d 384, 393
(Tex.Crim.App. 2000).


                                              2
pocket and asked him if he had “anything illegal on him.” Appellant removed a baggie of

marihuana from his pocket and placed it on the hood of the patrol car. At that point,

Carrillo placed Appellant under arrest for possession of marihuana. Following Appellant’s

arrest, Carrillo conducted a warrant check to confirm his identity and he discovered a

criminal trespass warrant issued for Appellant.


      Appellant was taken to the police department for booking. During a search incident

to arrest, the officer reached into Appellant’s pocket and found a small plastic baggie

containing methamphetamine and some cash. Eventually, Appellant was charged with

possession of methamphetamine, not marihuana.


      Appellant filed a motion to suppress illegally seized evidence. Following a hearing,

the trial court denied the motion, and Appellant plead guilty and was convicted of

possession of methamphetamine. By a sole issue, he challenges the trial court’s order

denying his motion to suppress.


                      Standard of Review--Motion to Suppress


      A trial court's ruling on a motion to suppress is reviewed for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In reviewing a trial court’s

determination of the reasonableness of either a temporary investigative detention or an

arrest, appellate courts use a bifurcated standard of review. Amador v. State, 221 S.W.3d

666, 673 (Tex.Crim.App. 2007).      Almost total deference is given to a trial court’s


                                            3
determination of the historical facts that the record supports especially when the trial

court’s fact findings are based on an evaluation of credibility and demeanor. St. George

v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85,

89 (Tex.Crim.App. 1997). Appellate courts also afford the same level of deference to a trial

court’s ruling on application of law to fact questions or mixed questions of law and fact if

the resolution of those questions turns on an evaluation of credibility and demeanor.

Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App. 2006). However, for mixed

questions of law and fact which do not fall within this category, appellate courts may

conduct a de novo review of the trial court's ruling. Amador, 221 S.W.3d at 673. Appellate

courts do not engage in their own factual review. Romero v. State, 800 S.W.2d 539, 543

(Tex.Crim.App. 1990).


       When, as here, no findings of fact were requested nor filed,2 we view the evidence

in the light most favorable to the trial court's ruling and assume the trial court made implicit

findings of fact supported by the record. See State v. Ross, 32 S.W.3d 853, 855-56

(Tex.Crim.App. 2000). If the trial court’s decision is correct on any theory of law applicable

to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.

2003); Ross, 32 S.W.3d at 855-56. At a suppression hearing, the trial court is the sole and


       2
        See State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006) (holding that upon
the request of the losing party on a motion to suppress evidence, the trial court shall state
its essential findings. If the losing party fails to request findings of fact, and the trial court
does not enter any of its own accord, the losing party can still appeal any adverse ruling
and State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000), will continue to control
how the trial court’s ruling is reviewed).

                                                4
exclusive trier of fact and judge of the credibility of witnesses and the weight to be given

their testimony. Id. at 855. Additionally, the legal question of whether the totality of the

circumstances is sufficient to support an officer’s reasonable suspicion is reviewed de

novo. See Madden v. State, 242 S.W.2d 504, 517 (Tex.Crim.App. 2007).


                                 Encounter versus Detention


       The State urges that because Appellant willingly answered Carrillo’s questions and

cooperated when asked to remove items from his pocket, their interaction was a mere

encounter, not requiring reasonable suspicion of criminal activity.3 We disagree. The

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

between police officers and citizens: encounters, investigative detentions, and arrests.4

State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002).


       An encounter is a consensual question and answer interaction between a citizen

and a police officer, in a public place, that does not require reasonable suspicion and does

not implicate constitutional rights. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct.

1319, 75 L.Ed.2d 229 (1983); State v. Perez, 85 S.W.3d at 819. An investigative detention

occurs when an individual is encountered by a police officer, yields to the officer’s display



       3
       Interestingly, the State argued at the suppression hearing that the interaction
between Appellant and Carrillo was a lawful detention; however, on appeal, the State
argues the interaction was an encounter.
       4
           The third category, arrests, is not relevant to this appeal.

                                                 5
of authority, and is temporarily detained for purposes of an investigation. Johnson v. State,

912 S.W.2d, 227, 235 (Tex.Crim.App. 1989). A person “yields to an officer’s display of

authority” when a reasonable person would not feel free to continue walking or otherwise

terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115

L.Ed.2d 389 (1991); State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999);

Johnson v. State, 912 S.W.2d at 234-35. An investigative detention is constitutionally

permissible if, under the totality of the circumstances, the officer has reasonable suspicion

supported by articulable facts that the person detained is, has been, or soon will be

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968);    Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005).            Whether

reasonable suspicion exists is determined by considering the facts known to the officer at

the moment of detention. Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App. 1997).


       Activation of overhead lights on a police vehicle does not necessarily make an

encounter non-consensual. See Franks v. State, 241 S.W.3d 135 (Tex.App.–Austin 2007,

no pet. h.). However, when a person stops in response to a patrol car’s emergency lights

rather than of his own accord, an investigatory detention has occurred and reasonable

suspicion is required. In Garza v. State, 771 S.W.2d 549 (Tex.Crim.App. 1989), in

response to an officer turning on his patrol car flashing lights, the defendant stopped his

vehicle at an auto parts store. The officer testified that when he observed the defendant’s

car, he believed the driver resembled a mug shot and contacted other officers by radio that

he was about to stop the individual. Id. at 552. The State argued there was no stop or

                                             6
seizure because the defendant voluntarily stopped his car at the auto parts store pursuant

to a predetermined plan. Id. at 556. The Court suggested, “it cannot be seriously

maintained that a reasonable person under the circumstances would have believed that

he was free to leave.” Id. at 557. See also Hernandez v. State, 963 S.W.2d 921, 924

(Tex.App.–San Antonio 1998, pet. ref’d) (activating emergency lights would cause a

reasonable person to believe he is not free to leave). But see Franks v. State, 241 S.W.3d

at 142 (activation of patrol car’s overhead lights in an area that appeared dark and

unoccupied except for a single car does not necessarily constitute a detention); Martin v.

State, 104 S.W.3d 298, 301 (Tex.App.–El Paso 2003, no pet.) (citing a New Mexico Court

of Appeals case holding that an officer’s use of overhead lights alone does not necessarily

cause an encounter to be a stop).


       A distinction in the underlying case is that Appellant was not stopped while in a

vehicle. Rather, he was on foot. Nevertheless, a pedestrian is entitled to the protection

of the Fourth Amendment as he walks down the street. See Terry v. Ohio, 392 U.S. 1, 9,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).           In Tanner v. State, 228 S.W.3d 852

(Tex.App.–Austin 2007, no pet.), a police officer observed the defendant and a female

companion walking from behind a bar at 3:00 a.m. and flashed his patrol car lights and

signaled for them to stop. The female stopped, but the defendant continued to walk. Id.

at 854. The officer drove towards the defendant, who then stopped. The officer searched

the defendant and found methamphetamine. Id. at 855. Citing Garza, 771 S.W.2d at 558,

the court found, “[t]here is no question that an investigative detention occurred when [the

                                            7
defendant] stopped walking in response to [the officer’s] demand.” Tanner, 228 S.W.3d

at 856 n.3.


       Officer Carrillo testified that he observed Appellant walking across a field and that

as Appellant approached the curb, he activated his patrol car lights and called out to him.

Appellant approached Carrillo and complied with his requests, including removing items

from his pocket, which included marihuana. On cross-examination, Carrillo answered

affirmatively when asked whether activation of his patrol car lights is a communication to

a person to stop. He also testified on cross-examination that had Appellant fled from him

after activating his lights, he might have possibly charged him with evading. No evidence

was presented that Carrillo believed Appellant was in distress, that the area was dark, or

that safety reasons existed for activating the patrol car lights. Under these facts, we

conclude that activation of the patrol car lights caused Appellant to yield to Officer Carrillo’s

show of authority. We further conclude that Appellant did not feel free to leave or decline

Carrillo’s requests. Thus, we find that a detention occurred requiring reasonable suspicion

by Carrillo to stop Appellant.


                                   Reasonable Suspicion


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

Texas Constitution protect against unreasonable searches and seizures by government

officials. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007); Johnson v.

State, 912 S.W.2d 232-34; Martinez v. State, 72 S.W.3d 76, 81 (Tex.App.–Amarillo 2002,

                                               8
no pet.). The reasonableness of an investigative detention is determined by a dual inquiry:

(1) whether the officer’s action was justified at its inception; and (2) whether it was

reasonably related in scope to the circumstances which justified the interference in the first

place. Terry, 392 U.S. at 19-20.


       An investigative detention requires an officer to have reasonable suspicion founded

upon articulable facts that when combined with rational inferences from those facts, would

lead him to reasonably suspect that criminal activity is afoot and that the detainee is

connected to the activity. Id. at 21; Balentine, 71 S.W.3d at 768. These facts must

amount to more than a mere inarticulable hunch or suspicion. Williams v. State, 621

S.W.2d 609, 612 (Tex.Crim.App. 1981). Reasonableness of a search is a question of law

that is reviewed de novo and is evaluated by the totality of the circumstances. Kothe v.

State, 152 S.W.3d 54, 62 (Tex.Crim.App. 2004); Woods v. State, 956 S.W.2d 33, 38

(Tex.Crim.App. 1997).


       Officer Carrillo testified that he questioned Appellant because he was walking late

at night and because there had been recent criminal mischief and burglaries in the vicinity.

According to Carrillo, he was conducting “effective patrol” by stopping persons for walking

during the hours of 12:30 a.m. and daylight. On cross-examination, however, he testified

that the “recent” crime in the area had actually occurred some three months earlier and

consisted of a brick being thrown through the back window of a pickup. He could not recall

the type of burglary that occurred.


                                              9
       Carrillo testified that no criminal activity had been reported during his shift on the

night he stopped Appellant. Additionally, when he observed Appellant walking across the

field, he did not see him with a brick in his hand nor did he see him carrying any items

common to burglaries. It was not until after Carrillo made contact with Appellant that he

observed glassy eyes and shakiness which lead him to believe that Appellant might be

under the influence of alcohol or narcotics.


       Although time of day5 and the level of criminal activity in an area may be factors to

consider in determining reasonable suspicion, they are not suspicious in and of

themselves. See Klare v. State, 76 S.W.3d 68, 73-76 (Tex.App.–Houston [14th Dist.]

2002, pet. ref’d). See also Scott v. State, 549 S.W.2d 170, 172-73 (Tex.Crim.App. 1976).

Time of day and criminal activity in the area are facts which focus on the suspects

surroundings, and not on the suspect himself. Klare, 76 S.W.3d at 75. Thus, an

assessment of the surroundings must raise a suspicion that the particular individual being

stopped is engaged in wrongdoing. Id. at 75, citing U.S. v. Cortez, 449 U.S. 411, 418, 101

S.Ct. 690, 66 L.Ed.2d 621 (1981). Officer Carrillo did not offer any testimony to raise

suspicion that Appellant was engaged in criminal activity prior to initiating contact with him.

Additionally, there are no independent indicia of reasonable suspicion in the record before

us. Under the totality of the circumstances, we find that the factors cited by Carrillo, i.e.,

time of day and “recent” crime in the area, were a mere pretext for stopping Appellant.


       5
      Nighttime activity per se is not sufficient to create suspicion of criminal activity. See
Brown v. Texas, 443 U.S. 47, 53, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

                                               10
       Although we find that Appellant was illegally detained in violation of his constitutional

rights, we nevertheless agree with the State that the methamphetamine was admissible

because it was discovered subsequent to Officer Carrillo’s discovery of an outstanding

warrant for criminal trespass. Under the attenuation doctrine, evidence may be admitted

if the connection between the initial illegality and the means through which the evidence

was secured is so attenuated as to dissipate the taint. See Welcome v. State, 865 S.W.2d

128, 133 (Tex.App.–Dallas 1993, pet. ref’d); Reed v. State, 809 S.W.2d 940, 944-45

(Tex.App.–Dallas 1991, no pet.). The discovery of an outstanding warrant during an illegal

detention may break the connection between the primary taint and subsequently

discovered evidence. See Johnson v. State, 496 S.W.2d 72, 74 (Tex.Crim.App. 1973).

See also Fletcher v. State, 90 S.W.3d 419, 420-21 (Tex.App.–Amarillo 2002, no pet.).


       Officer Carrillo testified that he believed he ran a criminal history check after

Appellant had already been arrested. He also testified that in his effort to identify

Appellant, he discovered the warrant, and Appellant was “going to go to jail” for the

warrant. The methamphetamine was not discovered until Appellant was searched incident

to his arrest at the police department.         The record supports admissibility of the

methamphetamine as it was discovered subsequent to the outstanding warrant. The

marihuana, however, would not have been admissible because it was discovered during

an illegal detention and prior to discovery of the criminal trespass warrant. Appellant’s sole

issue is overruled.



                                              11
                                      Conclusion


      We find that Officer Carrillo illegally detained Appellant without reasonable

suspicion. Regardless, we conclude that discovery of the criminal trespass warrant for

Appellant prior to discovery of the methamphetamine provided sufficient attenuation so as

to render the methamphetamine admissible. Accordingly, the trial court did not abuse its

discretion in denying Appellant’s motion to suppress evidence. Consequently, the trial

court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice



Publish.




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