Opinion issued November 6, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00746-CR
                           ———————————
                   SHIRLEY ANNE VANLOWE, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                          Galveston County, Texas
                     Trial Court Case No. MD-0326968


                         MEMORANDUM OPINION

      Appellant, Shirley Anne VanLowe, was charged by information with driving

while intoxicated. 1 After the trial court denied her motion to suppress, Appellant

pleaded nolo contendere. The trial court found Appellant guilty and assessed


1
      See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2014).
punishment at 180 days’ confinement with a $200 fine. The trial court then

suspended the sentence and placed Appellant on community supervision for 12

months. In one issue on appeal, Appellant argues that the trial court abused its

discretion by denying the motion to suppress because the evidence established that

the officer detained her in violation of her constitutional rights prior to determining

she was intoxicated.

      We affirm.

                                     Background

      After she was charged, Appellant filed a motion to suppress, arguing that she

had been detained in violation of her constitutional rights and that, as a result, all

evidence obtained as a result should be suppressed. After a hearing on the motion

to suppress, the trial court issued findings of fact and conclusions of law. Having

found no flaw with the trial court’s findings of historical fact, we rely on them in

review of the sole issue on appeal. 2 In pertinent part, the trial court found as

follows:


2
      We give almost total deference to a trial court’s determination of historical facts,
      especially those based on an evaluation of witness credibility or demeanor.
      Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). Additionally,
      when, as here, the trial court makes findings of fact with its ruling on a motion to
      suppress a statement, we review only whether the record supports the trial court’s
      factual findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
      We must defer to the trial court’s fact findings unless a finding is not supported by
      the record. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). Appellant
      has not challenged any of the trial court’s findings, and we find no flaw in them.
      Accordingly, we rely on them in this appeal.

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3.     The only witness to testify at the suppression hearing was [R.]
       Nett, a Trooper and certified peace officer employed by the
       State of Texas, Department of Public Safety.

4.     On July 28, 2012, Trooper Nett was on duty, working alone in
       his patrol car.

5.     At approximately 2:00 in the morning, Trooper Nett was
       driving FM2004, in a rural area near Highway 646, in
       Galveston County, Texas.

....

7.     Trooper Nett described the location as a “pretty rural area. . . .
       It’s a one lane, two direction road. . . . There’s a bar in the area
       and in the evening time there’s really not a whole lot of traffic
       that goes through there. . . . There’s not a whole lot of anything
       [businesses] out in that area.”

8.     According to Trooper Nett, depending on the time of day and
       traffic, it can be hours before a motorist can get help and a
       motorist could be stranded for a long period of time.

9.     Trooper Nett testified traffic was light.

10.    At about 2:00 o’clock in the morning, as Trooper Nett was
       traveling north on FM2004, he saw [Appellant’s] vehicle
       parked on the grassy shoulder of FM2004, facing south.

11.    The high beams of [Appellant’s] vehicle were on.

....

13.    Trooper Nett testified, “as I approached [Appellant’s vehicle]
       you know I observed that it had [the] high beams on and I was
       going to stop to just make sure everything was all right.”

14.    Trooper Nett testified that he was not concerned about any
       criminal activity.

....


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      16.    Trooper Nett drove past [Appellant’s] vehicle, turned around,
             and pulled in behind [Appellant’s] vehicle.

      17.    Trooper Nett further testified that he “pulled in behind her
             vehicle just to make sure she was okay . . . . it is a pretty rural
             area through there.” Because [Appellant] was stopped on the
             side of the road at 2:00 in the morning, in a remote, rural area,
             Trooper Nett believed [Appellant] might need some help.

      ....

      19.    Trooper Nett activated his emergency lights.

      20.    Trooper Nett testified that if [Appellant] had driven off at that
             point, he would have performed a traffic stop; however, there
             was no evidence that this was conveyed to [Appellant], or that
             she believed that she was not free to leave.

      ....

      23.    As Trooper Nett walked towards [Appellant’s] vehicle, he
             observed [Appellant] to be sitting in the driver’s seat apparently
             looking for something.

      24.    The Court found Trooper Nett to be a credible witness.

      25.    The State presented, without objection for purposes of this
             hearing, only, the first 90 seconds of the video from Trooper
             Nett’s patrol car, leading up to the initial contact between
             Trooper Nett and [Appellant].

                                Type of Encounter

      In her sole issue on appeal, Appellant argues that the trial court abused its

discretion by denying her motion to suppress. Specifically, Appellant argues that

Trooper Nett did not have a warrant when he approached her, that the encounter

was an investigative detention, that he lacked any reasonable suspicion of criminal



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activity, and that the community-caretaking exception for the requirement for a

warrant did not apply. As a result, Appellant argues, all evidence obtained as a

result of the encounter should have been suppressed.

A.    Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and

review the trial court’s application of the law to the facts de novo. Id. Almost total

deference should be given to a trial court’s determination of historical facts,

especially those based on an evaluation of witness credibility or demeanor.

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression

hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      When, as here, the trial court makes findings of fact with its ruling on a

motion to suppress a statement, we do not engage in our own factual review but

determine only whether the record supports the trial court’s factual findings.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial

court abuses its discretion in making a finding not supported by the record, we will



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defer to the trial court’s fact findings and not disturb the findings on appeal. Cantu

v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

B.    Analysis

      In its conclusions of law, the trial court determined that Trooper Nett’s

encounter with Appellant did not constitute a detention and that, even if it were a

detention, it was justified as a community-caretaking function. We agree with the

trial court that Trooper Nett’s encounter with Appellant was not a detention.

      There are three distinct types of interactions between police and citizens:

consensual encounters, investigative detentions, and arrests. Wade v. State, 422

S.W.3d 661, 667 (Tex. Crim. App. 2013). While investigative detentions and

arrests are constrained by the Fourth Amendment of the United States Constitution,

consensual encounters “do not implicate the Fourth Amendment.” Id. “Police

officers are as free as any other citizen to approach citizens to ask for information

or cooperation. Such consensual encounters may be uncomfortable for a citizen,

but they are not Fourth Amendment seizures.” Id.

      There is no bright line distinguishing a consensual encounter from a

detention. Id. Instead, we review the totality of the circumstances to review de

novo whether a detention occurred. Crain v. State, 315 S.W.3d 43, 48–49 (Tex.

Crim. App. 2010). An encounter with the police is a detention if (1) the officer

asserts his authority in a way that (2) a reasonable person would believe she is not



                                          6
free to leave. Id. at 49. For the first element, “the court focuses on whether the

officer conveyed a message that compliance with the officer’s request was

required.”   Id.   Facts that might indicate a show of authority include “‘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.’” Id. at 49–50 (quoting U.S. v. Mendenhall, 446 U.S. 544, 554 100 S.

Ct. 1870, 1877 (1980)). For the second element, “[t]he 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. at 49.

      For the first element, appellant argues, “The trooper’s emergency lights are

that unmistakable show of authority known to every person who has ever received

a traffic citation. Appellant relies on an opinion from the Eastland Court of

Appeals to support this assertion. See Gonzales v. State, 342 S.W.3d 151, 153

(Tex. App.—Eastland 2011) aff’d, 369 S.W.3d 851 (Tex. Crim. App. 2012). We

find Gonzales distinguishable.

      As in this case, the officer in Gonzales noticed a car by the side of the road

in a rural area late at night and decided to stop. Id. at 153. However, in Gonzales,

the officer “turned on his back red and blue flashing lights, his front-facing red and

blue flashing lights, and his front bright white light (take-down light).”         Id.



                                          7
Relying on an opinion from the Court of Criminal Appeals, the Eastland Court of

Appeals held that the use of “blue flashers” constituted a sufficient show of

authority for a reasonable person to believe he was not free to leave. Id. (citing

State v. Garcia-Cantu, 253 S.W.3d 236, 245 n.43 (Tex. Crim. App. 2008)).

      In Garcia-Cantu, the Court of Appeals recognized that “[t]he use of ‘blue

flashers’ or police emergency lights are frequently held sufficient to constitute a

detention or seizure of a citizen, either in a parked or moving car.” 253 S.W.3d at

245 n.43. It also held, however, that the use of a patrol car spot light alone “is

frequently necessary to protect officers during any type of night-time police-citizen

encounter. Thus, the use of a spotlight, by itself, is not a circumstance that

necessarily converts a consensual encounter into a Fourth Amendment detention.”

Id.

      This is the critical distinction in this case. Trooper Nett testified that he

brought his flashing lights on in the rear but only his spot lights (take-down lights)

in the front. The spot lights, by themselves, are not enough to automatically

convert an encounter into a detention when approaching a truck parked on the

shoulder of a road after 2 a.m. Furthermore, there is no evidence Appellant was

aware that the rear flashing lights were on. Nor is there any suggestion that it

would be reasonable for Appellant to conclude that flashing lights, which that were

not directed at her, should constitute a show of authority against her.



                                          8
         The trial court determined in its conclusions of law that the activation of the

spot lights, upon approaching a parked truck in a rural area late at night with little

surrounding light, did not constitute a show of authority to create a detention. We

agree.     Appellant does not allege any other facts to establish an assertion of

authority, and we find none. Because Trooper Nett did not assert his authority

before engaging with appellant, the encounter remained a consensual encounter.

Accordingly, the Fourth Amendment was not implicated. See Wade, 422 S.W.3d

at 667 (holding consensual encounters “do not implicate the Fourth Amendment”).

We hold the trial court did not abuse its discretion by denying Appellant’s motion

to suppress.

         We overrule Appellant’s first issue. Because this issue is dispositive of the

motion to suppress, we do not reach Appellant’s second issue. See TEX. R. APP. P.

47.1.

                                       Conclusion

         We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).


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