                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-10-00366-CR

CHRISTOPHER JAMES WADE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-926-C2


                          MEMORANDUM OPINION


      Under a plea bargain agreement, Christopher James Wade pleaded guilty to the

offense of possession of a controlled substance. The trial court assessed his punishment

at twelve months’ confinement in state jail. Wade was given permission to appeal the

trial court’s pretrial ruling on Wade’s motion to suppress. He raises two issues in this

appeal. We will affirm.

      In the first issue, Wade argues that the trial court erred in denying his motion to

suppress. We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118

S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of

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

testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Ross v. State, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by Cullen v. State, 195

S.W.3d 696 (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. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (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. Amador,

221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.

       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. Wiede, 214 S.W.3d at

24; Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit

Wade v. State                                                                            Page 2
fact findings that are supported by the record are also dispositive of the legal ruling. Id.

at 819.

          Game Warden Jason Campbell testified at the suppression hearing that on May

17, 2010, he was patrolling Lake Waco with Officer James Ranft. As they passed the Flat

Rock boat ramp, Officer Campbell observed several cars in the parking lot and thought

people might be fishing at the boat ramp. Game Warden Ranft drove their boat to

shore, and Officer Campbell got out of the boat.

          Officer Campbell observed a vehicle with the engine running and went to check

on the occupant. When Officer Campbell approached the vehicle, Wade rolled down

the window. Officer Campbell asked Wade if he was okay, and Wade responded that

he was eating lunch and that he lived nearby. Officer Campbell did not observe any

food or a cooler in the vehicle and asked to see Wade’s identification.             Wade’s

identification listed his address as being in Elm Mott, Texas, which was not near the

boat ramp. Wade then told Officer Campbell that he was looking to purchase property

in the area.

          Officer Campbell said that Wade appeared nervous. He asked Wade if Wade

had any weapons or anything he should be aware of, and Wade responded, “Why are

you doing this to me?” Officer Campbell thought that this was a strange response, and

he again asked if Wade had any weapons or contraband. Wade responded similarly,

“Why are you doing this?” Officer Campbell then asked Wade to step out of the vehicle

and explained that he was going to conduct a “pat-down” for his safety.

          Wade stepped out of the vehicle, and Officer Campbell asked if Wade had

Wade v. State                                                                         Page 3
anything that Officer Campbell needed to know about. Wade said that there was a

“pipe” behind the seat, and Officer Campbell understood that to mean a pipe for

smoking narcotics.       He searched the vehicle and found a glass pipe with

methamphetamine residue and a small plastic baggie containing methamphetamine.

       Wade argues that he was detained and searched in violation of the Fourth

Amendment and article 38.23 of the Code of Criminal Procedure and that he was

interrogated without the benefit of Miranda warnings.

       Consensual police-citizen encounters do not implicate Fourth Amendment

protections. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389

(1991); Woodard v. State, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). Law enforcement is

free to stop and question a fellow citizen; no justification is required for an officer to

request information from a citizen. Woodard, 341 S.W.3d at 411.

       No bright-line rule governs when a consensual encounter becomes a seizure. Id.

Generally, however, when an officer through force or a showing of authority restrains a

citizen's liberty, the encounter is no longer consensual. Id. At that point, an encounter

becomes a detention or arrest, both of which are seizures under the Fourth Amendment.

Id. When there is a detention, courts must decide whether the detaining officer had

reasonable suspicion that the citizen is, has been, or soon will be, engaged in criminal

activity. Id.

       If a police officer reasonably suspects that a person is armed, a limited pat down

of that person is permissible. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d

889 (1968); Castleberry v. State, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011). The State has

Wade v. State                                                                          Page 4
the burden to present facts sufficient to show reasonable suspicion. Castleberry, 332

S.W.3d at 467.     Whether the State has met its burden must be determined by

considering the specific facts known by the officer at the moment of detention. Id. This

determination of reasonable suspicion may also be “based on commonsense judgments

and inferences about human behavior.” Id.

       In denying the motion to suppress, the trial court made findings of fact and

conclusions of law. When a trial court makes explicit findings, we are to determine

whether the evidence, viewed in the light most favorable to the trial court’s ruling,

supports the findings. Kelly, 204 S.W.3d at 818.

       The trial court found that Officer Campbell’s initial encounter with Wade was

consensual. The trial court further found that Officer Campbell observed objective facts

that created a reasonable suspicion that Wade was engaged in criminal activity and that

Wade’s admission to the possession of drug paraphernalia gave Officer Campbell

probable cause to detain Wade and search his vehicle. The trial court found Officer

Campbell to be a credible witness.

       Because we must view the evidence in the light most favorable to the trial court’s

ruling, and because the trial court judges the credibility of the witnesses and the weight

to be given their testimony, Wiede, 214 S.W.3d at 24-25, these findings are supported by

the evidence. Officer Campbell observed Wade’s vehicle in the parking lot and checked

on the occupant, and Wade rolled down the window to speak to him. Officer Campbell

became suspicious when Wade changed his story concerning his reason for being at the

boat ramp and when Wade appeared very nervous. Officer Campbell asked Wade two

Wade v. State                                                                       Page 5
times if he had any weapons, and Wade did not answer the question, instead giving

what Officer Campbell considered strange responses.            Officer Campbell became

concerned for his safety and conducted a pat-down of Wade.

       Because the trial court did not abuse its discretion in denying the motion to

suppress, we overrule Wade’s first issue.

       In the second issue, Wade argues that the trial court erred in refusing to consider

his affidavit in support of his motion to suppress in violation of article 28.01 of the Code

of Criminal Procedure. At the suppression hearing, Wade offered an affidavit in which

he detailed his version of the events leading to his arrest.         Wade’s version was

inconsistent with Officer Campbell’s version. The State objected to the admission of the

affidavit because the State would not be able to cross-examine Wade. The State further

objected that Wade did not file the affidavit at least seven days before the hearing.

       Subsection 1(6) of article 28.01 provides:

       Motions to suppress evidence—When a hearing on the motion to suppress
       evidence is granted, the court may determine the merits of said motion on
       the motions themselves, or upon opposing affidavits, or upon oral
       testimony, subject to the discretion of the court;

TEX. CODE CRIM. PROC. ANN. art. 28.01 (West 2006). Subsection 1(6) unambiguously

gives a trial court the discretion to determine the format of a pretrial suppression

hearing. State v. Miller, 116 S.W.3d 912, 915 (Tex. App.—Austin 2003, no pet.). It does

not require the trial court to consider an affidavit when live testimony is offered.

Accordingly, the trial court did not abuse its discretion in refusing to consider Wade’s

affidavit. We overrule the second issue.


Wade v. State                                                                           Page 6
       Having overruled both of Wade’s issues, we affirm the trial court’s judgment.




                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 26, 2012
Do not publish
[CR25]




Wade v. State                                                                     Page 7
