                                   NO. 07-06-0129-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 JANUARY 9, 2007
                         ______________________________

                        JACQUELINE V. HARPER, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2005-409263; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION


       Appellant, Jacqueline V. Harper, appeals her conviction for possession of a

controlled substance, methamphetamine, in an amount less than one gram and her

sentence of one year incarceration in a state jail facility in the Texas Department of

Criminal Justice. Appellant contends that the trial court erred in overruling her motion to

suppress evidence. We affirm.
                                        Background


       On the morning of April 4, 2005, Lubbock Police Officer John Hayes was dispatched

to a Walgreen’s parking lot to investigate a report of a person passed out in a vehicle in the

store’s parking lot. Upon his arrival, Hayes observed that an ambulance had already

arrived and that EMS personnel were speaking to a female sitting inside a vehicle. From

Hayes’s observation, he noticed that appellant was slow in responding and appeared

groggy. The EMS personnel determined that appellant was not in medical distress and left

the scene. Hayes opined that, at that point, he was uncertain as to whether appellant was

intoxicated or simply very tired. Being uncertain of appellant’s ability to safely operate a

motor vehicle and drive herself home, Hayes decided to ask appellant to step out of her

vehicle.   As appellant stepped out of the vehicle, a small baggie containing a white,

crystal-like substance fell from her lap. Hayes then arrested her for possession of a

controlled substance. The substance was later verified to be methamphetamine.


       At a pretrial hearing, appellant challenged the admission of the methamphetamine

by a motion to suppress contending that the controlled substance was obtained as a result

of an illegal detention. The trial court overruled appellant’s motion to suppress. At trial,

a jury found appellant guilty of possession of a controlled substance, state jail felony, and

the trial court assessed her punishment at one year in a state jail facility. Appellant

appeals the trial court’s ruling on the motion to suppress the admission of the

methamphetamine. We affirm.




                                              2
       An appellate court reviews a trial court’s ruling on a motion to suppress for abuse

of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Under

this standard, we give almost total deference to a trial court's determination of historical

facts supported by the record, especially when the trial court's fact findings are based on

an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App.1997). When, as in this case, the trial court makes no explicit findings of

historical fact, we presume that it made those findings necessary to support its ruling,

provided that they are supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-

28 (Tex.Crim.App. 2000). We give the same amount of deference to a trial court's ruling

on “application of law to fact questions” if the resolution of those ultimate questions turns

on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de

novo mixed questions of law and fact that do not turn on an evaluation of credibility and

demeanor. Id. We review a trial court's decisions regarding detention and reasonable

suspicion de novo. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App.1998).


       A police officer’s interaction with a citizen can be classified as an encounter,

detention, or seizure. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.–Houston [1st

Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in

public to ask questions. Id. Encounters do not require any justification whatsoever on the

part of an officer. Id. (citing U.S v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980)). An investigative detention is a confrontation of a citizen by law

enforcement officers wherein a citizen yields to a display of authority and is temporarily

detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235


                                             3
(Tex.Crim.App.1995).      An investigative detention is permitted if it is supported by

reasonable suspicion. Citizen, 39 S.W.3d at 370. See also Terry v. Ohio, 392 U.S. 1, 27,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is a particularized and

objective basis for suspecting the person is, has been, or soon will be engaged in criminal

activity.   Citizen, 39 S.W.3d at 370 (citing Crockett v. State, 803 S.W.2d 308, 311

(Tex.Crim.App.1991)). A determination of whether the police interaction is an encounter,

detention or seizure is assessed by looking at the totality of the circumstances. See Hunter

v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997).


        The issue presented on appeal is whether Hayes’s interaction with appellant,

specifically Hayes’s request to step out of the vehicle, constituted a sufficient display of

authority to raise the encounter into an investigative detention, such that appellant no

longer felt free to decline the officer’s request or otherwise terminate the encounter. See

Citizen, 39 S.W.3d at 370 (quoting State v. Velasquez, 994 S.W.2d 676, 679

(Tex.Crim.App. 1999)). If we conclude that the interaction became an investigative

detention, we must then determine whether the officer had reasonable suspicion to support

such detention.


        Appellant contends that the interaction was a detention and that Hayes, at the time,

did not have reasonable suspicion to justify the detention of appellant. However, nothing

in the record indicates the officer’s actions were such a display of authority that a

reasonable person would not have felt free to decline an officer’s request for compliance.

See Brewer v. State, 932 S.W.2d 161, 168 (Tex.App.–El Paso 1996, no writ) (holding that

consensual encounter occurred when a uniformed officer approached defendant in a

                                             4
parking lot, did not block defendant's path or order him to stop, and did not indicate that

defendant was required to comply with request to step back from car door); Ashton v.

State, 931 S.W.2d 5, 7 (Tex.App.–Houston [1st Dist.] 1996, writ ref'd) (holding that no

investigatory detention occurred when unidentified officer approached defendant, who was

sitting in a parked car in a public place, and asked her to roll down the window); Reyes v.

State, 899 S.W.2d 319, 323 (Tex.App.–Houston [14th Dist.] 1995, writ ref'd) (noting that

no seizure occurred when officer identified himself and asked to speak to defendant, but

did not display a gun, tell defendant that he was a narcotics agent, order defendant to

comply, or ask to search defendant's bag).         Even though the EMS personnel had

concluded that appellant did not have a medical emergency, Hayes continued to have

concerns as to whether appellant was able to drive home safely. Hayes testified that he

asked appellant to step out of the vehicle so that he could further observe appellant for the

two fold purpose of observing her for the effects of intoxication as well as to give appellant

an opportunity to stand up and “get the blood flowing” to see if appellant would become

more alert. From the record, Hayes was not attempting to gain further information to arrest

Harper, but was attempting to accurately resolve the dispatch call. See Terry, 392 U.S. at

13 (police encounters can be initiated for a variety of purposes wholly unrelated to a desire

to prosecute a crime); Hulit v. State, 982 S.W.2d 431, 438 (Tex.Crim.App. 1998) (police

officers acted reasonably when they approached a vehicle to ask if the person needed

assistance). Therefore, we conclude that Hayes’s interaction with appellant was an

encounter and no further justification was needed for the officer’s actions.




                                              5
       Even assuming, arguendo, that the encounter had become an investigative

detention when Hayes asked appellant to step out of the vehicle, Hayes testified that he

suspected that appellant was intoxicated. Given that the record indicates that Hayes

personally observed appellant in the Walgreen’s parking lot behind the wheel of a vehicle

in a groggy or “out of it” state, we conclude that Hayes had reasonable suspicion to

suspect that appellant was or would soon be involved in criminal activity. See TEX . PEN .

CODE ANN . §§ 49.02, 49.04 (Vernon 2003) (public intoxication and driving while

intoxicated). Therefore, when, as in this case, the trial court makes no explicit findings of

historical fact, we can presume that it made those findings necessary to support its ruling.

See Carmouche, 10 S.W.3d at 327. Hence, even if the interaction had become an

investigative detention, the trial court could have found that the officer had reasonable

suspicion to justify the detention.


       Whether the interaction between Hayes and appellant was an encounter or an

investigative detention, the trial court did not err in overruling appellant’s motion to

suppress. We overrule appellant’s issue and affirm the trial court’s judgment.




                                      Mackey K. Hancock
                                           Justice


Pirtle, J., concurring.



Publish.


                                              6
