      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00062-CR



                            Stephen Alexander Hedrick, Appellant

                                                 v.

                                  The State of Texas, Appellee


          FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. C1CR06755284, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Stephen Alexander Hedrick pleaded no contest to the offense of driving while

intoxicated. See Tex. Penal Code Ann. § 49.04 (West 2003). The trial court assessed punishment

at 120 days in jail and a $2,000 fine but suspended imposition of the sentence and placed Hedrick

on community supervision for eighteen months. In a single issue on appeal, Hedrick challenges the

trial court’s denial of his motion to suppress evidence. We will affirm the judgment.


                                        BACKGROUND

               At the hearing on Hedrick’s motion to suppress, the trial court heard evidence that, on

December 15, 2006, at approximately 11:50 p.m., Austin Police Department Officer Alan Goodwin,

who was on foot patrol, was “flagged down by a pedicab driver regarding a person in a vehicle

who was making an obscene gesture at her.” The person in the vehicle allegedly making the

obscene gesture was Hedrick. Officer Goodwin testified that he personally observed the gesture.
He explained that Hedrick was “actually up out of his seat and the steering wheel was about even

with his midsection and he was actually up on the dashboard of his vehicle and had his hand up

against the windshield giving the pedicab driver the finger.”

               Officer Goodwin testified that he “walked over to the driver’s side door of

Mr. Hedrick’s vehicle and [] contacted him.” On cross-examination, Goodwin provided the

following details about his initial contact with Hedrick:


       [Prosecutor]: Officer, when you first came into contact with the defendant, was his
                     car moving or was it already stopped?

       [Goodwin]:      His car was already stopped.

       [Prosecutor]: Okay. So . . . tell us about the encounter. Did you walk up and knock
                     on the window or how did it happen?

       [Goodwin]:      Well, like I said, I was flagged down by the pedicab driver. She
                       motioned toward[] the vehicle. . . . And so I went over and I—I
                       contacted him. I don’t recall if the window was down or if I knocked
                       on the window or how exactly I came into contact with him.

       [Prosecutor]: But at any rate, he rolled down the window and talked to you?

       [Goodwin]:      He did, yes.


               Later in his testimony, Officer Goodwin explained where Hedrick was located when

he made contact with him:


       [Prosecutor]: And you said this was actually on Sixth Street, right?

       [Goodwin]:      This is actually on Sixth Street at the intersection of Sixth and
                       San Jacinto.

       [Prosecutor]: Okay. Was . . . he inside the barricades, outside the barricades?

                                                 2
       [Goodwin]:     He was inside the barricades.

       [Prosecutor]: Where Sixth Street’s blocked off?

       [Goodwin]:     Yes.


On redirect, defense counsel sought to clarify the above testimony:


       [Defense counsel]:     You indicated his car was stopped. Was he—was he parked?
                              Was he sitting in a parked car?

       [Goodwin]:             No, he was not.

       [Defense counsel]:     He was sitting in a vehicle. Was the vehicle in a lane of
                              traffic?

       [Goodwin]:             Yes, it was inside the—inside the intersection.

       [Defense counsel]:     All right. And the vehicle is running and everything, correct?

       [Goodwin]:             Yes, sir.

       [Defense counsel]:     You had—and I’m assuming you got him out of the car. You
                              had him turn off his—park his vehicle or just turn off his
                              vehicle or—

       [Goodwin]:             I had him step out of the vehicle and I started dealing with
                              him directly. There [were] other officers present that took
                              care of the vehicle from that point forward.

       [Defense counsel]:     And I was just confused when you indicated he was stopped.
                              It wasn’t like he was pulled over and parked sitting in a
                              parked car, he was actually in a vehicle that’s running, with
                              the engine running and—

       [Goodwin]:             I had actually observed him operate his vehicle prior to
                              making contact with him.




                                                3
       [Defense counsel]:     And he’s—like I said, he’s in a lane of traffic. I guess at
                              some point he—had you not come up and talked to him, he
                              could have just driven away?

       [Goodwin]:             Yes, that’s correct.


               Officer Goodwin explained that his initial reason for contacting Hedrick was

to investigate the offense of disorderly conduct. See Tex. Penal Code Ann. § 42.01(a)(2)

(West Supp. 2008).          However, Goodwin testified, after he contacted Hedrick, he

“immediately smelled an odor of alcohol and just proceeded from there.” Goodwin added, “it was

a very strong, profound odor of alcohol.” At this point, Goodwin had Hedrick exit his vehicle.

Goodwin testified that Hedrick’s “clothing was disarranged, his shirt was half tucked and half

untucked, I noticed that his eyes were watery and bloodshot. I noticed his pupils were very dilated,

his speech was slurred, confused. His balance was poor, he swayed as he stood. He kind of—his

walking was unsure.” Goodwin proceeded to have Hedrick perform the standard field sobriety tests.1

Based on his observations of Hedrick and Hedrick’s performance on the field sobriety tests,

Goodwin arrested him for driving while intoxicated.

               Hedrick moved to suppress the above evidence of his intoxication on the basis that,

at the time Officer Goodwin first contacted Hedrick, he did not have reasonable suspicion to believe

that Hedrick had committed the offense of disorderly conduct. In response, the State primarily

argued that reasonable suspicion was not necessary because Officer Goodwin’s initial contact with

Hedrick was merely an encounter. The prosecutor explained:


       1
           Specifically, the horizontal gaze nystagmus (HGN), the walk-and-turn, and the
one-leg stand.

                                                 4
       Your Honor, it’s the State’s position that this was a consensual encounter from the
       very beginning, as [Goodwin] testified today. The car was not parked, but it was
       stopped on Sixth Street. [Hedrick] had apparently driven past the barricades and
       he . . . at least had his foot on the brake, sitting still when the officer first contacted
       him. So it’s our position, as defense counsel just said himself,[2] that the defendant
       could have driven away, you know, at that point [Goodwin] comes up to the window
       and asks him what’s going on.


Alternatively, the State argued that, if Hedrick was initially detained, Goodwin had reasonable

suspicion to believe that Hedrick had committed the offense of disorderly conduct.

               The trial court denied the motion to suppress on the ground that it believed Hedrick’s

conduct constituted disorderly conduct. Subsequently, Hedrick pleaded no contest to the offense of

driving while intoxicated and was sentenced to eighteen months’ probation. This appeal followed.


                                    STANDARD OF REVIEW

               A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse

of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). In other words, the

trial court’s ruling will be upheld if it is reasonably supported by the record and is correct under any

applicable legal theory. Id. That rule holds true even if the trial court gave the wrong reason for its

ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). The trial judge is the

sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997). We give trial courts almost complete deference in determining




       2
           The prosecutor was referring to defense counsel’s comment to the trial court moments
earlier that Hedrick was “sitting in his car, the engine’s running, he’s able to drive away.”

                                                   5
historical facts, but we review de novo the trial court’s application of the law. Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000).


                                            ANALYSIS

               Hedrick asserts that the trial court “erred” in denying his motion to suppress because

his conduct, “although rude, offensive or even vulgar, did not constitute a crime.” According to

Hedrick, “There is no evidence in the record that [his] gesture had a tendency to incite an immediate

breach of the peace.” In response, the State argues that “Officer Goodwin’s initial contact with

Hedrick amounted to an encounter, and did not rise to the level of a detention until the officer

smelled the overpowering odor of alcoholic beverages on Hedrick’s breath and asked him to step out

of the vehicle so that the officer could investigate intoxication.”3

               Encounters are distinct from detentions. An investigative detention occurs when

a police officer restrains a person’s freedom of movement, either by physical force or a show

of authority. State v. Griffey, 241 S.W.3d 700, 705 n.6 (Tex. App.—Austin 2007, pet. ref’d)

(citing Johnson v. State, 912 S.W.2d 227, 234 (Tex. Crim. App. 1995)). An investigative detention

constitutes a seizure and implicates constitutional safeguards.          Id. (citing United States

v. Mendenhall, 446 U.S. 544, 554 (1980)). Investigative detentions require reasonable suspicion.




       3
          The State also argues that, if Hedrick was detained, Officer Goodwin had reasonable
suspicion to believe that he committed the offense of disorderly conduct and, in the alternative, that
Goodwin had reasonable suspicion to believe that Hedrick had committed offenses other than
disorderly conduct. Because we ultimately conclude that the trial court’s denial of the motion to
suppress is reasonably supported by the record under the theory that Goodwin’s initial contact with
Hedrick was merely an encounter, we need not address these contentions. See Armendariz v. State,
123 S.W.3d 401, 405 (Tex. Crim. App. 2003).

                                                  6
See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (“An officer conducts a lawful

temporary detention when he has reasonable suspicion to believe that an individual is violating

the law.”); State v. Nelson, 228 S.W.3d 899, 902 (Tex. App.—Austin 2007, no pet.) (“A warrantless

automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be

justified by reasonable suspicion.”). Reasonable suspicion exists if the officer has specific,

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

to reasonably conclude that a particular person actually is, has been, or soon will be engaged

in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) (citing Garcia

v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

               In contrast to detentions, encounters are consensual interactions between citizens and

police that do not require reasonable suspicion and do not implicate constitutional rights. Florida

v. Royer, 460 U.S. 491, 497-98 (1983). Encounters occur when police officers approach an

individual in a public place to ask questions, request identification, or request consent to search as

long as the interaction is consensual—that is, as long as an officer does not convey a message that

compliance with the officer’s request is required. Florida v. Bostick, 501 U.S. 429, 434-35 (1991).

In other words, “[p]olice officers ‘do not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place, by asking him if he is willing to answer some

questions, by putting questions to him if the person is willing to listen, or by offering in evidence in

a criminal prosecution his voluntary answers to such questions.’” State v. Perez, 85 S.W.3d 817, 819

(Tex. Crim. App. 2002) (quoting Bostick, 501 U.S. at 434). To determine whether an encounter

between a police officer and a citizen rises to the level of a detention, the inquiry is whether,



                                                   7
“taking into account all of the circumstances surrounding the encounter, the police conduct would

have communicated to a reasonable person that he was not at liberty to ignore the police presence

and go about his business.” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008)

(citing Kaupp v. Texas, 538 U.S. 626, 629 (2003)).

               In this case, our inquiry is focused on the circumstances surrounding Goodwin’s

initial contact with Hedrick. The circumstances include the following:


       •   Goodwin approached Hedrick while on foot patrol; he was not in a
           police vehicle.

       •   Goodwin approached Hedrick on a public street, specifically, at the intersection
           of Sixth Street and San Jacinto Boulevard in downtown Austin.

       •   Hedrick’s vehicle, although not “parked,” was “stopped” in the intersection,
           inside barricades that were apparently blocking off Sixth Street at the time.
           Goodwin agreed that, had he not come up and talked to him, Hedrick could
           have just driven away. In fact, the vehicle’s engine was running, and
           Goodwin testified that, prior to contacting Hedrick, he had observed Hedrick
           operating his vehicle.

       •   Goodwin could not remember if the window was already open or if he knocked
           on the window when he contacted Hedrick. At any rate, Goodwin testified,
           Hedrick rolled down his window and talked to him.


Considering the above circumstances surrounding the encounter, we conclude that the record

supports a finding by the trial court that Goodwin’s conduct did not rise to the level of

communicating to a reasonable person that he was not at liberty to ignore the police presence and

go about his business. See id. Goodwin walked up to Hedrick’s vehicle on a public street while the

engine of Hedrick’s vehicle was running. Although the vehicle was “inside the barricades” blocking

off Sixth Street at the time, there is nothing in the record indicating that these barricades would have

                                                   8
prevented Hedrick from driving away.          In fact, Goodwin testified that Hedrick could have

driven away, and he explained that he had observed Hedrick operate his vehicle prior to

contacting him. Nor does the record reflect that there was any police vehicle present that might

have prevented Hedrick from driving away.             See Franks v. State, 241 S.W.3d 135, 142

(Tex. App.—Austin 2007, pet. ref’d) (in case involving defendant stopped at rest area and

approached by officer, explaining that “nothing in the record suggests” that defendant was prevented

from leaving by “simply driving forward”). Also, although Goodwin could not remember if he

knocked on the window of Hedrick’s vehicle or if it was already rolled down when he approached

him, there is no indication in the record that Goodwin ordered Hedrick to roll down his window.

See Ebarb v. State, 598 S.W.2d 842, 849 (Tex. Crim. App. 1980) (op. on reh’g) (holding that

“when a person is sitting in a parked car and a police officer orders him to roll down the window or

to open the door,” detention has occurred).

               Circumstances similar to the above have repeatedly been held to constitute

an encounter rather than a detention.         See, e.g., Merideth v. State, 603 S.W.2d 872, 873

(Tex. Crim. App. 1980) (holding that no detention occurred when officer approached

defendant’s vehicle and knocked on window); State v. Bryant, 161 S.W.3d 758, 762

(Tex. App.—Fort Worth 2005, no pet.) (holding that officer was not required to have reasonable

suspicion to approach defendant’s car and knock on his window); Ashton v. State, 931 S.W.2d 5, 7

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that no investigatory detention occurred

when unidentified officer approached defendant, who was sitting in parked car in public place, and




                                                  9
asked her to roll down window).4 There are no facts present here that distinguish this case from the

above cases. Thus, the record supports a finding by the trial court that Officer Goodwin’s initial

contact with Hedrick was merely an encounter.

               We conclude that “the trial court’s ruling denying appellant’s motion to suppress was

supported by the record and was correct under a theory of law applicable to the case.” Armendariz,

123 S.W.3d at 405. Accordingly, this Court is “obligated to uphold the trial court’s ruling.” Id.

               We overrule Hedrick’s sole issue on appeal.


                                          CONCLUSION

               We affirm the judgment of the trial court.



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: August 28, 2008

Do Not Publish



       4
           See also Hurley v. State, No. 03-07-00433-CR, 2008 Tex. App. LEXIS 4820, at *15
(Tex. App.—Austin June 26, 2008, no pet. h.) (not designated for publication) (holding that initial
interaction between officer and defendant, in which officer approached defendant’s car and asked
her questions, was encounter); Cervas v. State, No. 2-04-463-CR, 2005 Tex. App. LEXIS 2736, at *4
(Tex. App.—Fort Worth April 7, 2005, no pet.) (mem. op., not designated for publication) (holding
that initial interaction between officer and defendant, in which officer approached defendant’s
vehicle and defendant rolled down her window to speak with officer, was encounter); Lewis v. State,
No. 05-04-00275-CR, 2005 Tex. App. LEXIS 1753, at *5 (Tex. App.—Dallas March 8, 2005,
no pet.) (not designated for publication) (holding that initial interaction was encounter when officers
merely approached defendant’s vehicle and defendant voluntarily put his hands out window).

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