                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-17-00191-CR


                            RUBEN VASQUEZ III, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
              Trial Court No. 71,778-E, Honorable Douglas R. Woodburn, Presiding

                                      March 26, 2019

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


       On his open plea of guilty to the bench, appellant Ruben Vasquez III was convicted

of the second-degree felony offense of possession of more than four grams but less than

200 grams of methamphetamine1 and sentenced to fifteen years of imprisonment.2

Appellant challenges the trial court’s denial of his motion to suppress. We will affirm.



       1   TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2018).
       2TEX. PENAL CODE ANN. § 12.33 (West 2018) (second-degree felonies are
punishable by imprisonment for any term of not more than 20 years or less than 2 years
                                        Background


       The trial court held a hearing on appellant’s pretrial motion to suppress evidence,

during which it heard the testimony of a Potter County deputy sheriff and viewed a portion

of the recording from the deputy’s patrol vehicle camera. The deputy testified he was

notified by dispatch of a reckless driver, eastbound on Interstate 40. An unidentified caller

reported a black Dodge Charger occupied by a male and a female, and indicated the

couple might have been arguing or fighting.


       As the deputy was driving westbound on the interstate, he saw an eastbound

vehicle matching the description, occupied by a male and a female. He crossed over to

the other side of the interstate shortly after seeing the car and followed it as the driver

took an exit off the highway and turned into a convenience store. The video demonstrates

traffic was light at the time.


       The deputy told the court the Charger stopped at one of the gas pumps and

appellant left the driver’s seat. The deputy testified he saw him “immediately walk around

the front of the vehicle, towards the passenger side of the vehicle.”          He “seemed

somewhat agitated” and he “slammed the door.” The deputy told the court he pulled his

patrol vehicle in front of appellant’s car and “parked in front of him facing him.” Appellant

“slammed the passenger door” as the deputy pulled up. He saw appellant open the

passenger side door again and then “acted as if he was going to walk away from the

vehicle.” As the deputy got out of his car, appellant “turned and walked back towards it,




and a fine not to exceed $10,000). Appellant pled “true” to the enhancement allegation
set out in the indictment.

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opened up the passenger door again.” The deputy told the court he saw the passenger’s

seat was “leaned back as if somebody was in it laying down.” He could see what he

believed “was a female passenger in the front seat, covering her face, as if she had been

crying or was upset.”


      The deputy told the court he asked appellant “what was going on”3 and asked him

to “step over towards” him while he motioned appellant to come to him. The video depicts

the deputy asking his question in a conversational tone and using a casual motion to

beckon appellant toward him. The video also shows that at that time, appellant was

already walking in the deputy’s direction. The deputy testified he asked appellant “to step

back towards me, to talk—to me just due to being dispatched on a reckless driver; the

vehicle matched the descriptions, due to the speeds; also the caller believed that, you

know, that the occupants were possibly arguing or fighting. He appeared upset; it was a

male driver. I then observed the female passenger; she appeared to be upset. Slamming

the doors. It was starting to add up to me that I had located the vehicle I was being

dispatched on.”


      The deputy further testified he and appellant spoke between the patrol car and

appellant’s car.4    The deputy asked for appellant’s identification and told him “my

reasoning in . . . making contact with him, was that I was dispatched on a reckless driver

traveling eastbound on I-40 in a black Dodge Charger.” Appellant provided his Texas




      3   The video reflects the deputy asked appellant, “What’s going on?”
      4 The quotations from this conversation come from the deputy’s hearing testimony.
The video reflects bits of the conversation, but parts are distorted and others are
inaudible.

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Identification card. The deputy testified appellant told him he and his wife were on their

way back to Austin when they began to argue. Appellant also told the deputy that at “one

point” he made his wife “exit the vehicle.” But, “he realized he couldn’t leave her out there

on the side of the road, due to being so far away from home, so he went back to pick her

up.”


       The deputy spoke with appellant’s wife also. While he was doing so, he received

information that neither appellant nor his wife had a valid driver’s license. Because

appellant had been driving the vehicle without a valid license, the deputy decided to place

appellant under arrest. When he searched appellant’s person, the deputy found the

packet of white crystal substance that led to appellant’s prosecution. He also found $3100

in appellant’s left front pocket. Other contraband was found in the Charger during its

subsequent search.


       After the court denied appellant’s motion to suppress, appellant entered an open

plea of guilty to the court. The court held a punishment hearing after which it assessed

punishment as noted.


                                          Analysis


       By his issue on appeal, appellant contends the trial court erred in denying his

motion to suppress because, he argues, the deputy initially lacked reasonable suspicion

to detain him.


       A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citation omitted). Where,

as here, no findings of fact were requested or filed, we view the evidence in the light most

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favorable to the trial court’s ruling and assume the trial court made implicit findings of fact

supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)

(citation omitted). We will uphold the trial court’s decision if it is correct on any theory of

law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003) (citing Ross, 32 S.W.3d at 856).


       Not every encounter between a citizen and a police officer implicates the Fourth

Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991) (citation omitted). There are

three types of police-citizen interactions. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim.

App. 2013). Those include: (1) consensual encounters that do not implicate the Fourth

Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited

scope and duration, which must be supported by a reasonable suspicion of criminal

activity; and (3) arrests, which are constitutional only if supported by probable cause. Id.

(citations omitted).


       A consensual encounter is one in which an officer “approaches a citizen in a public

place to ask questions, and the citizen is willing to listen and voluntarily answers.” Crain

v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) (citation omitted). Police officers are

free to approach citizens to ask for information or cooperation. Wade, 422 S.W.3d at 667

(citation omitted). And, during such an encounter, may request identification. See State

v. Castleberry, 332 S.W.3d 460, 468 (Tex. Crim. App. 2011); Finley v. State, No. 05-12-

01217-CR, 2013 Tex. App. LEXIS 9767, at *21-24 (Tex. App.—Dallas Aug. 5, 2013, no

pet.) (mem. op., not designated for publication) (identification requested during

consensual encounters). While such “consensual encounters may be uncomfortable for



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a citizen,” they are “not Fourth Amendment seizures.” Wade, 422 S.W.3d at 667 (citation

omitted).


      As long as a citizen feels that he is free to disregard the officer and leave, the

Fourth Amendment is not implicated. Bostick, 501 U.S. at 434 (citation omitted). It is

only when the officer makes a display of official authority with the implication that the

authority cannot be “ignored, avoided, or terminated” that the encounter becomes a

Fourth Amendment seizure. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim.

App. 2008). To determine whether interaction between citizen and officer has reached

the level of an investigative detention, courts take into account the totality of the

circumstances to decide whether a reasonable person would have felt free to ignore the

officer’s request or terminate their encounter.    Wade, 422 S.W.3d at 667 (citations

omitted). Among circumstances that might convey a message that compliance with the

officer’s request was required are “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the citizen, or

the use of language or tone of voice indicating that compliance with the officer’s request

might be compelled.” Crain, 315 S.W.3d at 49-50 (citing United States v. Mendenhall,

446 U.S. 544, 554 (1980)).


      The parties do not dispute that the interaction between the deputy and appellant

became an investigatory detention at some point. They dispute when that occurred.

Appellant argues the interaction was a detention from the outset, when the deputy pulled

his vehicle in front of the Charger at the gas pump, exited the vehicle, asked appellant




                                            6
“what’s going on?” and gestured to him with a statement.5 The State argues the initial

contact between appellant and the deputy was a consensual encounter, not evolving into

an investigatory detention until later. Based on the record before us, we agree with the

State that their encounter began as consensual.6


       Consensual encounters do not require any justification on the officer’s part and an

officer may initiate such an encounter “without reasonable suspicion” of criminal activity.

Castleberry, 332 S.W.3d at 466; State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App.

2011). And, an officer “may be as aggressive as the pushy Fuller-brush man at the front

door, the insistent panhandler on the street, or the grimacing street-corner car-window

squeegee man.” Garcia-Cantu, 253 S.W.3d at 243. The person approached, however,

“need not answer any question put to him; indeed, he may decline to listen to the

questions at all and may go on his way.” Florida v. Royer, 460 U.S. 491, 497-98 (1983).

See also Castleberry, 332 S.W.3d at 466 (“a citizen is free to terminate a consensual

encounter at will”). Further, the fact that the citizen complied with a request of the officer

“does not negate the consensual nature of the encounter.” Castleberry, 332 S.W.3d at

466 (citation omitted).




       5  As noted, the deputy testified he asked appellant to “step over towards me.”
Appellant’s brief states the deputy told appellant “come over here.” The statements are
similar, but we do not agree the record shows the deputy directed appellant to “come over
here.”

       6 The State also argues the deputy was properly performing his community
caretaking function. Given our disposition of appellant’s issue, we need not address that
contention.

                                              7
       The totality of the circumstances includes those that the encounter occurred in

broad daylight at a convenience store just off the interstate highway,7 appellant had

stopped his car at the gas pump and exited the car before the encounter began, the

deputy was the only officer present, he did not display a weapon, and he parked in a

manner in which appellant, had he chosen to, could have re-entered his vehicle and

driven off. Or, appellant as easily could have turned and walked into the convenience

store rather than approaching the deputy. As we have noted, the deputy’s question,

“what’s going on?”, and his statement, accompanied by his gesture beckoning appellant

toward him, were stated in a tone and manner that the trial court could have considered

non-demanding.


       The circumstances here are readily distinguished from those present in Crain, 315

S.W.3d at 51-52, in which an officer, in the dark of the night, shined his patrol car’s

spotlight on a pedestrian walking across a residential yard and called out from the car,

“Come over here and talk to me” before approaching the pedestrian on foot. Id. at 51.

Characterizing the officer’s words as a “request-that-sounded-like-an-order,” the court

concluded a reasonable person in the pedestrian’s shoes would not have felt free to leave

or decline the officer’s requests. Id. at 52. Accordingly, the pedestrian was detained at

that point. Id.


       In his appellate brief, appellant raises the contention that the patrol car’s

emergency lights were flashing as the deputy encountered appellant. Having reviewed


       7See Castleberry, 332 S.W.3d at 468 (noting court has explained a “reasonable
person would feel freer to terminate or ignore a police encounter in the middle of the day
in a public place where other people are nearby than he would when parked on a
deserted, dead-end street at 4:00 a.m.”) (quoting Garcia-Cantu, 253 S.W.3d at 245 n.42).

                                            8
the entire record and given close attention to the video recording, we agree with the

State’s response that, “[w]hether the overhead lights were on or not was not developed

on the record. No indication of pulsating lights is detected on the video recording.” We

find in the hearing record no discussion of whether the patrol car’s lights were on when

the deputy made contact with appellant. Reviewing the trial court’s ruling on the motion

to suppress, we follow the general rule that only evidence adduced at the motion’s hearing

is considered. Peddicord v. State, 942 S.W.2d 100, 108 (Tex. App.—Amarillo 1997, no

pet.). And we must view that evidence in the light most favorable to the court’s ruling.

Ross, 32 S.W.3d at 855-56.      Doing so, we cannot agree that the evidence shows

appellant was faced with flashing emergency lights as he encountered the deputy.


      We find the circumstances presented in the record do not reflect a display of

authority by the deputy that could not be “ignored, avoided, or terminated.” Garcia-Cantu,

253 S.W.3d at 243. On the contrary, we find a reasonable person in appellant’s shoes

would have felt free to disregard the officer’s approach and words, and go about his

business. Castleberry, 332 S.W.3d at 468; Wade, 422 S.W.3d at 667-68; Finley, 2013

Tex. App. LEXIS 9767, at *21-24. For those reasons, we resolve appellant’s sole issue

against him.


                                       Conclusion


      Having overruled appellant’s issue, we affirm the judgment of the trial court.




                                                       James T. Campbell
                                                          Justice
Do not publish.

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