                             NO. 12-08-00106-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
RICKIE DAWSON YORK,                            '   APPEAL FROM THE 241ST
APPELLANT

V.                                             '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                       '
                                             SMITH COUNTY, TEXAS
                                   MEMORANDUM OPINION
       Rickie Dawson York appeals his conviction for possession of a controlled
substance, for which he was sentenced to imprisonment for sixty years. Appellant raises
two issues on appeal. We affirm.


                                     BACKGROUND
       At approximately 3:00 a.m. on October 16, 2007, Bullard police officer Leland
Shawn Johnson was driving to Tyler, Texas and passed by a gas station. As he passed,
Johnson noticed a car parked on the sidewalk next to the station with its headlights
shining into the gas station. Because there had been a recent burglary at that particular
gas station, Johnson stopped to investigate.   As Johnson approached, he observed that
the vehicle‟s engine was running and that Appellant was sleeping in the driver=s seat of
the vehicle. Johnson sought to interview Appellant. When Johnson asked Appellant
about his present location, Appellant could not readily convey what he was doing and
gave the name of a town that was not nearby. Johnson asked Appellant to exit the vehicle
and consent to a search of his person. Appellant obliged, and Johnson discovered a
quantity of marijuana and methamphetamine in Appellant‟s right front pants pocket.
Subsequently, it was determined that Appellant had provided a false name. Appellant
was charged with possession of marijuana, failure to identify, and possession of
methamphetamine.
        In the misdemeanor trial for failure to identify, Johnson testified that the sole
reason he investigated Appellant at the service station was to determine if a burglary had
been committed or was then in progress. He further testified that he did not observe
Appellant commit a breach of the peace, a public order crime, a felony offense, or an
offense under Texas Penal Code, chapter 49. The trial court granted Appellant=s motion
to suppress and entered a directed verdict.
        In Appellant‟s subsequent trial for possession of methamphetamine, from which
the instant appeal arises, Appellant filed a motion to suppress based on various alleged
violations of his rights as well as an illegal detention and arrest. Appellant further
asserted that the trial court was bound by the misdemeanor court=s decision. A hearing
was conducted on Appellant=s motion to suppress. At the hearing, Johnson testified in
supplement to his prior testimony that he was also concerned that someone might be
committing the offenses of driving while intoxicated, public intoxication, or criminal
trespass. The trial court denied Appellant=s motion to suppress, and Appellant later
pleaded “guilty.” Thereafter, the trial court found Appellant “guilty” as charged and
conducted a trial on punishment before a jury. Ultimately, the jury assessed Appellant=s
punishment at imprisonment for sixty years.          The trial court sentenced Appellant
accordingly, and this appeal followed.


                                  MOTION TO SUPPRESS
        In his first issue, Appellant argues that the trial court erred by denying his motion
to suppress. Specifically, Appellant argues that Johnson (1) lacked reasonable suspicion
to conduct the investigatory detention that led to the discovery of the methamphetamine
and (2) lacked legal authority to detain or arrest Appellant because he was outside of his
jurisdiction.
Standard of Review
        We review a trial court=s ruling on a motion to suppress evidence under a
bifurcated standard of review. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.
App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing
the trial court=s decision, we do not engage in our own factual review. See Romero v.
State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861
(Tex. App.BFort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of

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the credibility of the witnesses and the weight to be given their testimony. Wiede v.
State, 214 S.W.3d 17, 24B25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000), modified on other grounds, State v. Cullen, 195 S.W.3d 696,
698–99 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial
court=s rulings on (1) questions of historical fact, even if the trial court=s determination of
those facts was not based on an evaluation of credibility and demeanor, and (2)
application of law to fact questions that turn on an evaluation of credibility and
demeanor. See Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101,
108B09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652B53 (Tex. Crim.
App. 2002). But when application of law to fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court=s rulings on those questions de
novo. See Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson, 68 S.W.3d at 652B53.
       In other words, when reviewing the trial court=s ruling on a motion to suppress,
we must view the evidence in the light most favorable to the trial court=s ruling. See
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When the record is silent on the reasons for the trial court=s ruling, or when there are no
explicit fact findings and neither party timely requested findings and conclusions from
the trial court, we imply the necessary fact findings that would support the trial court=s
ruling if the evidence, viewed in the light most favorable to the trial court=s ruling,
supports those findings. See Kelly, 204 S.W.3d at 819; see Amador, 221 S.W.3d at 673;
Wiede, 214 S.W.3d at 25. We then review de novo the trial court=s legal ruling unless the
implied fact findings supported by the record are also dispositive of the legal ruling. See
Kelly, 204 S.W.3d at 819.
Length of Detention and Reasonable Suspicion
       To justify an investigative detention, an officer must have reasonable suspicion,
based on specific articulable facts that, in light of the officer‟s experience and general
knowledge, lead the officer to a reasonable conclusion that criminal activity is underway
and that the detained person is connected with the activity. Sims v. State, 98 S.W.3d 292,
295 (Tex. App.BHouston [1st Dist.] 2003, pet. ref=d). We must review the totality of the
circumstances of each case to see whether the officer had a particular and objective basis
for having suspected wrongdoing. Id. (citing United States v. Arvizu, 534 U.S. 266, 273,

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122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002)); see also Carmouche v. State, 10 S.W.3d
323, 330 (Tex. Crim. App. 2000). (review under objective standard that disregards any
subjective intent of officer making detention and looks solely to whether objective basis
for detention exists). After initiating contact with a defendant, an officer may rely on all
of the facts ascertained during the course of such contact to develop articulable facts that
would justify a continued detention. See Powell v. State, 5 S.W.3d 369, 377 (Tex.
App.BTexarkana 1999, pet. ref=d).
       A detention must last no longer than is necessary to satisfy the purpose thereof.
See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983);
Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997); Willis v. State, 192 S.W.3d
585, 591 (Tex. App.BTyler 2006, pet. ref=d). The investigative methods employed should
be the least intrusive means available to verify or dispel the officer=s suspicion in a short
period of time. Sims, 98 S.W.3d at 295. There is no rigid time limitation on the
detention; the propriety of the detention‟s duration is judged by assessing whether the
police diligently pursued a means of investigation that was likely to dispel or confirm
their suspicions quickly. See id.; United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct.
1568, 1575, 84 L. Ed. 2d 605 (1985)).
       In the instant case, Appellant concedes that Johnson did not require any level of
suspicion to engage in an encounter with him. See Francis v. State, 922 S.W.2d 176, 178
(Tex. Crim. App. 1996) (encounter is friendly exchange of pleasantries or mutually
useful information, where person to whom questions are put remains free to disregard
questions and walk away). Thus, assuming arguendo that the facts before us indicate that
Johnson‟s encounter with Appellant ever became a detention, we will direct our inquiry
to whether Johnson had reasonable suspicion to continue his investigation once he
observed Appellant asleep in the driver=s seat of the vehicle.
       Johnson testified that he observed a vehicle parked in front of a closed business.
Due to the fact that, in the past, the business had been burglarized, the business was
closed, it was late at night, and the vehicle was parked on the sidewalk with its headlights
shining into the building, Johnson decided to approach the vehicle.             As Johnson
approached, he observed that the vehicle=s engine was running and that Appellant
appeared to be sleeping or “passed out” in the driver‟s seat. Johnson stated that he
contacted Appellant, who reacted with surprise. Johnson further stated that Appellant

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was unable to provide him with identification, at which point he asked Appellant to exit
the vehicle. Johnson testified that he asked Appellant what he was doing and that
Appellant responded that “he was waiting on her . . . by the university.” Johnson stated
that he asked Appellant where he believed he was and that Appellant advised that he
thought he was in Chapel Hill, a town not near Appellant=s location. Johnson further
stated that he asked Appellant for consent to conduct a search of his person and that
Appellant granted him such consent. Johnson testified that as a result of his search, he
recovered a baggie of marijuana and several bags of methamphetamine in Appellant=s
right front pants pocket.
       Appellant cites Klare v. State, 76 S.W.3d 68 (Tex. App.–Houston [14th Dist.]
2002, pet. ref‟d) in support of his proposition that Johnson‟s detention was not based on
reasonable suspicion. In Klare, the appellant‟s vehicle was, at 2:30 a.m., parked in front
of a convenience store that had previously “had problems with burglary.” Id. at 71. The
arresting officer admitted that the appellant had committed no traffic violations. See id.
The court of appeals noted that the time of day, a car that is parked in close proximity to a
business that is closed for the day, and a given locale that is well known for criminal
activity are each factors to be considered in deciding whether reasonable suspicion exists,
but are not individually capable of supporting reasonable suspicion. Id at 73–75. The
court further noted that courts generally require an additional fact or facts particular to the
suspect‟s behavior to justify a suspicion of criminal activity. Id. at 75. Such fact or facts
include traffic violations, failure to signal, driving through a gas station to avoid a red
light, an expired inspection sticker and no seatbelt, a burned out taillight, and speeding.
Id. Ultimately, the court held that under the facts before it, the officer did not have
reasonable suspicion to detain the appellant. Id. at 77.
       The instant case bears some similarity to the facts in Klare since Appellant‟s
vehicle was, during the early morning hours, parked in front of a business that was closed
for business and had been recently burgled. However, unlike the facts present in Klare,
the record in the case at hand contains additional facts that support Johnson‟s further
detention of Appellant.
       Here, the record reflects that Appellant‟s car engine was running and the
headlights were shining into the building. From these facts, considered in light of the
totality of the circumstances, Johnson could have rationally inferred that Appellant was

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attempting to illuminate the interior of this business that had been recently burgled and
that he left his engine running to facilitate his flight, if necessary, from that location. In
other words, Johnson could have reasonably suspected that Appellant was a getaway
driver.     Further, when Johnson made inquiries of Appellant, Appellant could not
effectively or accurately communicate to Johnson what he was doing or where he was.
Appellant‟s behavior could logically be construed as that of a person who was attempting
to a concoct an impromptu story to conceal illicit behavior.
          Finally, it is noteworthy that Appellant‟s vehicle was parked on the sidewalk. See
TEX. CODE CRIM. PROC. ANN. art. 14.03(d) (Vernon Supp. 2008) (peace officer who is
outside jurisdiction may arrest, without warrant, person who commits offense within
officer‟s presence or view if offense is felony or violation of Texas Penal Code, chapter
42); TEX. PENAL CODE ANN. § 42.03(a)(1) (Vernon 2003) (under Chapter 42, person
commits offense if, without legal privilege or authority, he intentionally, knowingly, or
recklessly obstructs sidewalk to which public has access). Thus, Johnson was entitled to
detain Appellant even though Johnson was outside of his jurisdiction.
          Based on the aforementioned facts, which we have considered in light of the
totality of the circumstances, we conclude that Johnson possessed one or more objective
bases to justify his detention, if any, of Appellant. Therefore, we hold that the trial court
did not abuse its discretion in overruling Appellant‟s motion to suppress. Appellant‟s
first issue is overruled.


                                   COLLATERAL ESTOPPEL
          In his second issue, Appellant argues that collateral estoppel bars the relitigation
of the following factual issues in his trial for possession of a controlled substance: (1)
whether Johnson was outside of his jurisdiction and (2) whether Johnson observed an
offense or action that would allow him to detain Appellant.
          The doctrine of collateral estoppel is embodied within the Double Jeopardy
Clause of the Fifth Amendment, which is applicable to the states through the Fourteenth
Amendment. Murphy v. State, 239 S.W.3d 791, 794 (Tex. Crim. App. 2007) (citing
Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469 (1970); U.S.
CONST. amend. V; U.S. CONST. amend. XIV); see also State v. Stevens, 261 S.W.3d 787,
790 (Tex. App.–Houston [14th Dist.] 2008, no pet.). While double jeopardy protects a

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defendant against a subsequent prosecution for an offense for which the defendant has
been acquitted, collateral estoppel deals only with relitigation of specific fact
determinations. Stevens, 261 S.W.3d at 790. Collateral estoppel means “that when an
issue of ultimate fact has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future lawsuit relating to the
same event or situation.” Id. (quoting Ashe, 397 U.S. at 443, 90 S. Ct. 1194; Ex parte
Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002)).
       To determine whether collateral estoppel bars a subsequent prosecution or permits
the prosecution, but bars relitigation of certain specific facts, the reviewing court applies
a two step analysis to determine (1) exactly what facts were necessarily decided in the
first proceeding, and (2) whether those necessarily decided facts constitute essential
elements of the offense in the second trial. Murphy, 239 S.W.3d at 795. To satisfy the
second part of the analysis, the precise fact litigated in the first prosecution “must also be
an essential element of the subsequent offense.”            Stevens, 261 S.W.3d at 790.
“Specifically, if the necessarily decided fact litigated in the first prosecution constitutes
an essential element framed within the second prosecution's offense, then the „essential
element of the offense‟ prong is satisfied.” Id.
       In the case at hand, Appellant‟s subsequent trial concerned charges that he
intentionally or knowingly possessed between one and four grams of methamphetamine.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(c) (Vernon Supp. 2009).
None of the facts litigated in the suppression hearing pertaining to Appellant‟s
misdemeanor trial concerning the legality of Appellant‟s detention and arrest are essential
elements of the offense at hand. Id. Rather, these facts underlie the issue of admissibility
of evidence. See, e.g., State v. Rodriguez, 11 S.W.3d 314, 318 (Tex. App.–Eastland
1999, no pet.). As such, we conclude that the relitigation of facts pertaining to (1)
whether Johnson was outside of his jurisdiction and (2) whether Johnson observed an
offense or action that would allow him to detain Appellant are not barred by collateral
estoppel because such facts do not constitute essential elements of the offense of
possession of methamphetamine. Appellant‟s second issue is overruled.




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                                               DISPOSITION
         Having overruled Appellant‟s first and second issues, we affirm the trial court‟s
judgment.
                                                                JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered December 16, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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