                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. PD-0209-12

                                JACKIE JOHNSON, Appellant

                                                 v.

                                    THE STATE OF TEXAS

              ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTEENTH COURT OF APPEALS
                               HARRIS COUNTY

          P RICE, J., filed a concurring opinion in which W OMACK, J., joined.

                                   CONCURRING OPINION

          I join the Court’s opinion today, but I write separately to clarify one point. The Court

correctly acknowledges that, in reviewing a motion to suppress, an appellate court should

review a mixed question of law and fact de novo unless it happens to turn on witness

credibility or demeanor.1 The Court then declares that the court of appeals erred in failing



          1

           Majority Opinion at 12 (citing State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013)).
                                                                                 Johnson — 2


to conduct a de novo review in this case—but without explaining why the mixed question of

law and fact did not turn on witness credibility or demeanor.2 Given that there was some

dispute in the testimony at the motion to suppress hearing, some explanation is in order.

       Whether an interaction between police and a citizen constitutes a mere encounter or

a detention is, I agree with the Court today, a mixed question of law and fact.3 Whether that

mixed question of law and fact should be considered deferentially or de novo by a reviewing

court depends upon whether that mixed question turns on a dispute of historical fact or

credibility of the witnesses.4 A reviewing court must defer to a trial judge’s determination

of historical facts, and make the legal determination whether a particular interaction is an

encounter or a detention by applying the law to those accepted historical facts.5 Likewise,

when resolution of the legal issue turns on a material conflict in the testimony of the

witnesses, a reviewing court must defer to a trial judge’s determination with respect to which

witness or witnesses, or what aspect of their testimonies, to believe or otherwise credit.6

There is a sense in which all appellate review of mixed questions of law and fact are


       2

       Id. at 13.
       3

       Id. at 12 (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).
       4

       Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       5

       Garcia-Cantu, 253 S.W.3d at 241.
       6

       Id.
                                                                                      Johnson — 3


ultimately de novo—but only after the appellate court has first deferred to the trial court’s

resolution (either explicit or implicit, depending upon whether written findings have been

requested) of any material issue of historical fact or witness credibility, then measuring the

facts, as so resolved, against the determinative legal standard.7 This is but another way of

saying that a reviewing court should make its legal determinations while viewing the facts

as the trial court found them to be, so long as those findings are supported by the record.8

       What does it mean to say that a mixed question of law and fact “turns” on the

credibility of the witnesses? It is true that the appellant and the officer in this case gave

somewhat conflicting accounts of their interaction that evening. According to the appellant’s

testimony, the officer completely blocked his egress with the squad car and then approached

the appellant with his gun drawn. If that is accurate, then the interaction between the

appellant and the officer was a detention by any rational reckoning.9 But the trial court’s

determination that the interaction was a detention need not necessarily have turned on the

contingency that it believed the appellant’s testimony and not the officer’s. Even rejecting

the appellant’s version of the interaction and crediting the officer’s account entirely, the trial


       7

        Id.
       8

        Id.
       9

        See id. at 242 (“Such a seizure occurs when, 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.”) (internal quotation
marks omitted).
                                                                                       Johnson — 4


court in this case might readily have determined that the appellant was the subject of a

detention, not a mere encounter. Under these circumstances, de novo review of the mixed

question of law and fact boils down to whether, discounting the appellant’s testimony while

crediting the officer’s, the interaction was an encounter rather than, as the trial court

determined, a detention.10 Since the court of appeals would be viewing the evidence in the

light most favorable to the trial court’s resolution of the issue, it would not be obligated to

defer to the trial court’s ultimate determination of this mixed question of law and fact.

       In my view, even accepting the officer’s testimony as wholly credible in this

case—that is to say, viewing the evidence in the light most favorable to a determination that

the interaction was no more than an encounter—the court of appeals’s ruling that the

interaction was a mere encounter cannot be sustained. The officer conceded that, while he

had not totally blocked the appellant’s egress, he had parked his squad car in such a way that

the appellant would have had to “maneuver” around him in order to drive away. The officer

then used a “[p]retty darn bright” spotlight and a “loud voice[,]” demanding to know “what’s

going on” and asking to see the appellant’s identification. While none of these circumstances

in isolation would lead to the ineluctable conclusion that the appellant was detained, I do not

believe it may reasonably be concluded that a reasonable person in the appellant’s shoes


       10

         Indeed, it seems to me that only when the credibility determination is wholly dispositive of
the mixed question of law and fact—that is to say, believe witness A and the defendant necessarily
wins under the law, but believe witness B and the State necessarily does—must a reviewing court
defer to a trial court’s credibility-based resolution of a mixed question of law and fact.
                                                                                         Johnson — 5


would have felt free to disregard the officer’s approach under the totality of the

circumstances.11 In other words, I believe that the court of appeals erred in concluding from

its de novo review that the appellant was not detained.

        I take the Court to be saying that the court of appeals was correct in this particular

case to review the mixed question of law and fact—whether the interaction was an encounter

or a detention—de novo because, on the present record, it does not turn on witness credibility

or demeanor.12 With this understanding, and because I agree that the court of appeals erred

in its de novo determination of that mixed question, I join the Court’s opinion.




FILED:          December 11, 2013
PUBLISH




        11

        See Crain v. State, 315 S.W.3d 43, 49-52 (Tex. Crim. App. 2010) (holding that the court of
appeals abused its discretion to hold that a police officer who shined his squad car’s spotlight at the
defendant and instructed him to “come over here and talk to me” did not detain him).
        12

        Thus, I do not take the Court to speak quite as categorically as it sounds when it declares that
“the question of detention versus encounter is a question of law that must be reviewed de novo.”
Majority Opinion at 13.
