                            NUMBER 13-12-00628-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOSE LUIS GARCIA MORALES,                                                  Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 445th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza and Perkes
                 Memorandum Opinion by Justice Garza
      Appellant, Jose Luis Garcia Morales, was charged with possession of cocaine, a

third-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).

Following the trial court’s denial of his motion to suppress the drug evidence, appellant

pleaded guilty pursuant to a plea bargain. The trial court deferred adjudication and
placed appellant on community supervision for six years. The trial court certified that

this “is a plea-bargain case, but matters were raised by written motion filed and ruled on

before trial . . . and the defendant has the right of appeal.”              See TEX. R. APP. P.

25.2(a)(2)(A). 1 By a single issue, appellant contends the trial court erred in denying his

motion to suppress. We affirm.

                                         I. BACKGROUND

       Appellant contends the trial court erred in denying his motion to suppress the

cocaine evidence because the City of Brownsville police officers that approached him

and questioned him did so based on information obtained from a confidential informant

that was not shown to be reliable. At the motion to suppress hearing, two City of

Brownsville police officers testified: Agent Albert Torriz and Officer Marco Huerta.

       Agent Torriz testified that on the night appellant was arrested, he and other

officers were conducting surveillance of narcotics operations in the downtown area.

Agent Torriz has twenty years’ experience as a police officer, with seventeen years

assigned to the special investigations unit. On the night of appellant’s arrest, he was

undercover. Agent Torriz observed appellant for ten or fifteen minutes. Appellant was

using a flashlight to direct vehicles in and out of a public parking lot adjacent to a

downtown bar. Appellant was making contact with drivers and bar patrons as they

entered or left the bar. A confidential informant had informed Agent Torriz that the

person using a flashlight to direct traffic in the parking lot was selling narcotics. Agent

Torriz testified that the same informant had provided him with reliable information on



       1
        The trial court clarified certification of appellant’s right to appeal at a status hearing on
November 1, 2012.




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various other occasions. In fact, information provided by the informant had led to the

arrest of another person approximately thirty minutes earlier about two blocks away.

Agent Torriz did not approach appellant but conveyed the information to Officer Huerta.

Agent Torriz saw Officer Huerta and a second officer, Sergeant Felix Sauceda,

approach appellant and arrest him.

        Officer Huerta testified that Agent Torriz described appellant and identified him

as possibly engaged in illegal drug activity. Officer Huerta, who was in uniform and

driving a marked police vehicle, parked at the curb of the parking lot approximately

twenty-five feet away from appellant. Sergeant Sauceda, who was in plain clothes and

in an unmarked police unit, also parked at the curb and joined Officer Huerta in

approaching appellant. The officers approached appellant, identified themselves, and

said that they were conducting an investigation of possible drug activity. According to

Officer Huerta, appellant became “real nervous.” Officer Huerta asked appellant if he

had any illegal drugs. Appellant responded, “yes,” that he had several small baggies of

cocaine in his pant pocket. 2 After the officers arrested appellant, he stated that the

cocaine was his and was for his own personal use.                       According to Officer Huerta,

appellant was advised of his rights after he was taken to the police station.

        Appellant also testified at the suppression hearing. On cross-examination by the

State, appellant stated that he pulled the cocaine out of his pants pocket himself. He

stated that he had three small bags of cocaine, worth a total of thirty dollars.




        2
          At the suppression hearing, the trial court asked defense counsel, “Is your client alleging that he
did not voluntarily produce the narcotics?” Defense counsel answered: “Yes, Your Honor, that is. That
he was—under the circumstances, Your Honor, it amounted to a detention so therefore, you know—.”




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        At the conclusion of the hearing, defense counsel argued that the trial court

should suppress the cocaine and appellant’s statements made after he was arrested but

before he was Mirandized. 3 Counsel argued that the cocaine was obtained pursuant to

“a warrantless search, without probable cause.” The trial court denied the motion to

suppress the cocaine evidence. 4 The trial court granted the motion to suppress as to

any statements made by appellant after he was arrested but before he was Mirandized.

                           II. STANDARD OF REVIEW AND APPLICABLE LAW

                In reviewing a trial court's ruling on a motion to suppress, appellate
        courts must view all of the evidence in the light most favorable to the trial
        court's ruling. When the trial court does not make explicit findings of fact,
        the appellate court infers the necessary factual findings that support the
        trial court's ruling if the record evidence (viewed in the light most favorable
        to the ruling) supports these implied fact findings. Thus, we afford almost
        total deference to a trial judge's determination of the historical facts that
        the record supports, especially when his implicit factfinding is based on an
        evaluation of credibility and demeanor. This same highly deferential
        standard applies regardless of whether the trial court has granted or
        denied a motion to suppress evidence. Thus, the party that prevailed in
        the trial court is afforded the strongest legitimate view of the evidence and
        all reasonable inferences that may be drawn from that evidence. But the
        question of whether a given set of historical facts amount to a consensual
        police-citizen encounter or a detention under the Fourth Amendment is
        subject to de novo review because that is an issue of law—the application
        of legal principles to a specific set of facts.

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (citations omitted).

        “The Supreme Court has determined that there are three distinct types of

interactions between police and citizens: (1) consensual encounters, which require no

objective justification; (2) investigatory detentions, which require reasonable suspicion;



        3
            See Miranda v. Arizona, 384 U.S. 436 (1966).
        4
          Specifically, the trial court stated, “but the issue of all acts leading up to his arrest including his
voluntary,—I understand you’re disputing it was voluntary, but his production of the cocaine from his
pocket will not be suppressed.”



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and (3) arrests, which require probable cause.” State v. Castleberry, 332 S.W.3d 460,

466 (Tex. Crim. App. 2011); State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim.

App. 2011). Consensual encounters do not implicate Fourth Amendment protections.

Woodard, 341 S.W.3d at 411. Police officers are free to request information from a

citizen with no justification in a consensual encounter. Id. A citizen may terminate such

a consensual encounter at will. Id. A citizen's acquiescence to an officer's request

does not automatically transform a consensual encounter into a detention or seizure,

even if the officer does not communicate to the citizen that the request for information

may be ignored. Id.

       To justify an investigative detention, however, an officer must have “reasonable

suspicion that the citizen is, has been, or soon will be, engaged in criminal activity.” Id.

“A police officer has reasonable suspicion to detain if he has specific, articulable facts

that, combined with rational inferences from those facts, would lead him reasonably to

conclude that the person detained is, has been, or soon will be engaged in criminal

activity.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The test

for reasonable suspicion focuses solely on whether an objective basis exists for the

detention and disregards the officer’s subjective intent.      See Abney v. State, 394

S.W.3d 542, 550 (Tex. Crim. App. 2013) (“[A]n officer’s mistake about the legal

significance of facts, even if made in good faith, cannot provide probable cause or

reasonable suspicion.”).

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

Woodard, 341 S.W.3d at 411. “Generally, however, when an officer through force or a




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showing of authority restrains a citizen’s liberty, the encounter is no longer consensual.”

Id. Examples of circumstances that might indicate a detention has occurred would be

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 v. State,

315 S.W.3d 43, 49–50 (Tex. Crim. App. 2010). The activation of emergency lights and

the positioning of the patrol unit are also circumstances that could indicate a detention.

See Garcia-Cantu, 253 S.W.3d at 243. “It is the display of official authority and the

implication that this authority cannot be ignored, avoided, or terminated, that results in a

Fourth Amendment seizure.” Id.

                                         III. DISCUSSION

       Appellant argues that the officers’ interaction with him was a detention

unsupported by reasonable suspicion.       We disagree.     Officer Huerta and Sergeant

Sanchez approached appellant on foot from vehicles parked about twenty-five feet

away. Only Officer Huerta’s vehicle was a marked police vehicle. In arriving at the

scene, neither officer used emergency lights. Officer Huerta was in uniform; Sergeant

Sanchez was in plain clothes.       Neither officer threatened appellant or displayed a

weapon.     Officer Huerta testified that immediately after the officers identified

themselves, they asked appellant if he had any illegal drugs, and he responded

affirmatively. When Officer Huerta was asked whether he advised appellant that he

could refuse to speak to them, Officer Huerta said, “He wasn’t detained. We didn’t

detain him at all. He could have easily walked away.” Also, there was no evidence that




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the officers displayed weapons, touched appellant, or used a tone of voice indicating

that appellant’s compliance was mandatory. See Crain, 315 S.W.3d at 49-50. Viewing

the totality of the circumstances of the encounter in the light most favorable to the trial

judge’s ruling, see id. at 244, we hold that the trial court could reasonably have

determined that the initial interaction between the officers and appellant was a

consensual encounter. See Woodard, 341 S.W.3d at 412–14 (holding that defendant

failed to show he was seized where, even without information that the officer obtained

from an anonymous tipster, the officer’s stop and inquiry of person walking along

sidewalk was a consensual encounter).

       Even if we were to find that the initial encounter was an investigative detention

requiring reasonable suspicion, see Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim.

App. 2003), the information obtained from the confidential informant provided the

officers with reasonable suspicion that appellant was involved in criminal activity.

Confidential informants may be considered reliable tipsters if they have a successful

“track record.” State v. Duarte, 389 S.W.3d 349, 357 (Tex. Crim. App. 2012). Here,

Agent Torriz testified that the confidential informant had given him reliable information

on “various occasions,” including information that same evening that led to an arrest.

See Smith v. State, 58 S.W.3d 784, 790 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d) (“A confidential informant can provide the requisite reasonable suspicion to justify

an investigative detention so long as additional facts are present to demonstrate the

informant's reliability.”).

       We hold the trial court did not err in denying appellant’s motion to suppress the

cocaine evidence and overrule appellant’s sole issue.




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                                     IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                   __________________________
                                                   DORI CONTRERAS GARZA
                                                   Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of December, 2013.




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