      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00246-CR
                                       NO. 03-11-00252-CR



                                      Tekel Foote, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
                    NOS. D-1-DC-10-205939 & D-1-DC-10-205938
                 HONORABLE KAREN SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Tekel Foote was charged with unlawful possession of a firearm by a felon and

aggravated robbery with a deadly weapon. During a pre-trial hearing, Foote filed a motion to

suppress arguing that all of the evidence obtained after his detention should be suppressed because

his detention was not supported by reasonable suspicion. Ultimately, the district court denied the

motion, and Foote entered into a plea agreement under which he was entitled to appeal the district

court’s ruling on the motion to suppress. We will affirm the district court’s judgments.


                                         BACKGROUND

               One night in October 2010, members of the Austin Police Department’s metro

tactical unit were patrolling an area of East Austin that is near the downtown entertainment district.

That area had recently experienced an increase in the number of robberies and burglaries, and the
tactical unit was attempting to catch the perpetrators by patrolling the area in both unmarked and

marked police vehicles. The unit was informed that two to three African American men had been

committing robberies in that area and that they wore dark clothing and bandannas.

               Around 12:45 a.m., Police Sergeant James Dixon was driving in an unmarked police

car and saw two African American men standing by a parked car. Shortly thereafter, Sergeant Dixon

noticed Foote, who is also African American, exiting a nearby vehicle wearing a glove and carrying

a bandanna in his hand. All three men were wearing dark clothing. Next, Sergeant Dixon saw Foote

open the passenger door of his car and either take something from under the front seat or put

something underneath the seat.

               Sergeant Dixon felt that he should investigate the situation further and called for

backup. In response to his call, two patrol cars arrived on the scene, and the officers exited their

vehicles. At some point, Foote turned and walked away from the uniformed officers. One of the

uniformed officers asked Foote to stop, but Foote began to run instead. Officer Paul Chavez ran

after Foote and observed Foote remove an item from his waistband that looked like a gun and throw

the object over a railing. Ultimately, Officer Chavez caught up to Foote, and a handgun was found

in the area where Officer Chavez saw Foote throw the item that the officer “thought was a gun.”

               After the police detained Foote, they searched his car and found two laptops and a

cellphone in the backseat. Those items were later linked to an aggravated robbery.

               Eventually, Foote was arrested and was indicted for possession of a firearm by a felon

and for aggravated robbery with a deadly weapon. After being charged, Foote filed a motion to

suppress the evidence seized by the police. In his motion, Foote contended that the police did not



                                                 2
have reasonable suspicion to stop him and that the subsequent search by the police was therefore

illegal. In response to the motion, the district court scheduled a hearing. After hearing arguments

from both sides, the district court denied Foote’s motion to suppress at the end of the hearing.

                Subsequent to the district court’s ruling, Foote entered into a plea bargain and

pleaded guilty to the two charged offenses. Under the terms of the plea, Foote was allowed to appeal

the district court’s ruling on his motion to suppress. After the district court accepted the plea, it

sentenced Foote to fifteen years in prison for the aggravated-robbery charge and to ten years in prison

for the unlawful-possession-of-a-firearm charge.

                Soon after the district court imposed its sentence, Foote filed this appeal.


                                            DISCUSSION

                In his sole issue on appeal, Foote argues that his “detention and search by Austin

police officers participating in a proactive effort to suppress a spike in crime in Austin’s entertainment

district were not shown to be justified by a reasonable suspicion of criminality and, therefore, it was

error for the trial court to deny his motion to suppress.” Stated differently, Foote contends that the

testimony of the officers during the suppression hearing reveals that “the information they had was

not sufficient to give rise to reasonable suspicion to detain Foote for investigation of any possible

illegal activity.”

                “In a motion to suppress hearing, the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony.” State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000). Accordingly, the trial court may “believe or disbelieve all or any

part of a witness’s testimony, even if that testimony is not controverted.” Id. When reviewing a trial

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court’s ruling on a motion to suppress, we “should afford almost total deference to a trial court’s

determination of the historical facts that the record supports especially when the trial court’s fact

findings are based on an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). In addition, we review “de novo the court’s application of the law of

search and seizure” to the facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

When no findings of fact are filed, “we must view the evidence in the light most favorable to the

trial court’s ruling and will uphold the ruling on any theory of law applicable to the case.” Ross,

32 S.W.3d at 856.

                 Under the law of search and seizure, the reasonable-suspicion standard applies

to “brief detentions which fall short of being fullscale searches and seizures.” Woods v. State,

956 S.W.2d 33, 35 (Tex. Crim. App. 1997).1 Under this standard, “a police officer can stop and

briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported

by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”

Id. (quoting Terry v. Ohio, 392 U.S. 1, 88 (1968)); see also Illinois v. Wardlow, 528 U.S. 119,

123-24 (2000) (explaining that for reasonable suspicion to be present, officer must be able to state

more than hunch or unparticularized suspicion of criminal activity). “[T]he reasonableness of a

temporary detention must be examined in terms of the totality of the circumstances and will be

justified when the detaining officer has specific articulable facts, which taken together with rational

inferences from those facts, lead him to conclude that the person detained actually is, has been, or




        1
             Both the State and Foote agree that reasonable suspicion is the governing standard in
this case.

                                                  4
soon will be engaged in criminal activity.” Woods, 956 S.W.2d at 38. When determining if there

was reasonable suspicion, reviewing courts must bear in mind that although there may be situations

in which a person’s conduct appears innocent when viewed in a vacuum, that conduct may establish

reasonable suspicion when considered under the totality of the circumstances. Curtis v. State,

238 S.W.3d 376, 380 (Tex. Crim. App. 2007). The totality of the circumstances includes the police

officers’ training and experience. State v. Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso

2010, pet. ref’d). Accordingly, “when innocent facts, meaningless to the untrained, are used by

trained law-enforcement officers, those facts, combined with permissible deductions therefrom,

may form a legitimate basis for suspicion of criminal activity.” Id. Other factors that courts may

consider include whether the temporary detention occurred in an area known for having higher

rates of crime and whether the person stopped is displaying nervous or evasive behavior. Wardlow,

528 U.S. at 124. Moreover, although fleeing from the police “is not necessarily indicative of

wrongdoing, . . . it is certainly suggestive of such.” Id. Furthermore, although it is true that an

investigative stop is a seizure, Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996), an

individual is not “seized until he has yielded to a law enforcement officer’s show of authority or

when officers physically limit his movement,” Johnson v. State, 912 S.W.2d 227, 234 (Tex. Crim.

App. 1995).

               During the suppression hearing, the parties and the district court were primarily

focused on the events that occurred before Foote ran from the police. When the district court made

its ruling, it explained that it found “that the officers did have reasonable suspicion to conduct a

detention at the time that he called in the backup cars, and at that time, then, when Foote evaded.”



                                                 5
Further, the district court explained that the recent increase in criminal activity in the area, the

description of the assailants in the area, and the behavior of Foote and his companions provided the

officers with reasonable suspicion. Specifically, the trial court stated as follows:


       [T]he metro tactical unit was placed in this area because of a spike in crime. Part of
       that spike in crime included a description of two to three African-American males
       wearing dark clothing with bandannas.

       And so when the officer pulled up and saw these three gentlemen and he saw one of
       them actually holding a bandanna, another factor that I think needs to be considered
       is that defendant Foote was -- had a glove on his hand on a warm October night in
       Austin, Texas in this high crime area at precisely the time when the crimes were
       being committed.

       And I think that the testimony was clear that both defendants had on black shirts,
       black jeans, were dressed entirely in dark clothing. That combined with the furtive
       movements and basically with the sergeant’s knowledge of 17 years on the force of
       viewing individuals, as he pulled up, he testified that they weren’t acting like other
       individuals going to and from the 6th Street area.


               Similarly, in challenging the district court’s ruling on appeal, Foote primarily focuses

on the activities that Sergeant Dixon observed prior to the arrival of the uniformed officers and on

the information that the police had been given regarding criminal activities in the area. For example,

he alleges that his presence in the area should not have been suspicious because no one observed him

engage in any criminal activity, because there was a lot of foot traffic in the area where he was

detained, and because people often parked there to take advantage of free parking. Although Foote

acknowledges that the police had been given descriptions of individuals involved in criminal activity

in the general area, he asserts that the descriptions were vague, that they provided no information

about specific criminal activities or when and where they occurred, and that the crimes referenced



                                                  6
in the descriptions had no bearing on his arrest because they referred to crimes that occurred several

weeks prior to Foote’s arrest. Furthermore, Foote argues that the descriptions given to the police

described the suspects as wearing bandannas to cover their faces but that neither Foote nor his

companions were wearing bandannas in the manner described. In addition, Foote argues that

although Sergeant Dixon testified that he observed Foote perform a furtive gesture and thought

that it was strange that Foote and the other two men were just standing at the corner, Foote

insists that he and his companions may have exhibited the allegedly suspicious behavior in

response to observing Sergeant Dixon’s car drive slowly past them while Dixon stared at them.

Stated differently, Foote argues that the behaviors that he and his companions exhibited were

reasonable and cautionary responses.

               However, as noted by the district court, regardless of the events that occurred prior

to the arrival of the uniformed officers, Foote’s behavior after the arrival of the officers provided

the articulable facts necessary to support a reasonable-suspicion determination. In his testimony,

Sergeant Dixon explained that after observing Foote and the other men, he called for assistance and

that two marked police vehicles quickly responded to the request. Further, Sergeant Dixon related

that after the police officers arrived and got our of their vehicles, Foote ran away from the officers.

In addition, Sergeant Dixon explained that the officers pursued and caught Foote and “found a

weapon that he pitched on the side of the building.”

               During the hearing, Officer Paul Chavez was also called to the stand. In his testimony,

he explained that he responded to the request for assistance made by Sergeant Dixon in less than

a minute after receiving the call and saw Foote and two other men standing on a nearby corner.



                                                  7
Then, Officer Chavez related that after he got out of his car, Foote turned his back to the officers

and started walking away. Later, Officer Chavez related that the three men were walking prior to the

arrival of the officers, but Officer Chavez also explained that another officer asked Foote to stop but

that Foote instead started running. Moreover, Officer Chavez testified that he chased Foote and saw

“him reach in his waistband and toss what I thought was a gun over the railing.” Finally, Officer

Chavez also related that he later searched the area where he saw Foote throw the object and found

a handgun.

               After Officer Chavez testified, Officer Leif Guevara was called to the stand and

explained that he responded to Sergeant Dixon’s request for assistance and saw Foote “evading on

foot from Officer Chavez.”2

               In light of this testimony, we cannot conclude that the district court erred by finding

that there was reasonable suspicion to detain Foote. Although it is not clear from Officer Chavez’s

testimony whether Foote and his companions had started walking before the uniformed officers

exited their vehicles, Officer Chavez did testify that Foote began running after an officer asked him

to stop and that while he was running away, Foote removed what appeared to be a gun from inside


       2
          In his brief, Foote contends that his decision to run from the police and to remove an item
resembling a gun from his waistband and to toss it could not have provided the officers with
reasonable suspicion to detain him because an officer told him to stop just before he started running.
For that reason, he argues that the officer had detained him by the time that he started running. We
disagree. Given that Foote fled after the officer asked him to stop and continued running until the
officers caught up, we cannot agree that Foote was detained when one of the officers asked him to
stop because he had not yielded to the officers’ show of authority and because the officers were not
physically limiting his movements. See Johnson v. State, 912 S.W.2d 227, 234, 235 (Tex. Crim.
App. 1995) (explaining that show of authority without application of physical force that defendant
does not submit to is not seizure and holding that if fleeing defendant does not yield to show of
authority, he is not seized until physically stopped or restrained).

                                                  8
his pants and then threw the object over a nearby railing. In addition, all three officers testified that

they saw Foote running from the police. Foote’s decision to run from the police coupled with his

reaching into his waistband and throwing what one officer believed to be a gun over a railing after

starting to flee provided the officers with “specific articulable facts, which taken together with

rational inferences from those facts,” led them to conclude that Foote was, had been, or soon

would “be engaged in criminal activity.” See Woods, 956 S.W.2d at 38; see also Wardlow, 528 U.S.

at 124-25 (concluding that “unprovoked flight upon noticing the police” provided officers with

reasonable suspicion).

                Although we believe that Foote’s behavior after the arrival of the uniformed officers

provided them with reasonable suspicion, we note that additional testimony was given during the

suppression hearing that supported the district court’s determination. In particular, testimony was

introduced showing that there had been an increase in criminal activity in the area, that the officers’

interaction with Foote occurred late at night, and that Foote and his companions generally met the

description for the suspects involved in other crimes in the area: they were African American men

wearing dark clothing, and Foote was carrying a bandanna. Moreover, in light of the recent reports

of criminal activities in the area by individuals matching the same general description, the officers

could reasonably have inferred that the suspects involved in the prior crimes might still be

committing crimes in the same area.3


        3
         In his brief, Foote refers to various cases in which courts have held that evidence should
be suppressed because there was an insufficient basis to establish reasonable suspicion. However,
none of those cases involved the same type of testimony demonstrating multiple articulable facts
upon which a reasonable-suspicion determination may be made. See, e.g., Ceniceros v. State, 551
S.W.2d 50, 55 (Tex. Crim. App. 1977) (op. on reh’g) (determining that reasonable suspicion did not

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                  For all these reasons, we conclude that when viewed under the totality of the

circumstances, Foote’s detention was supported by reasonable suspicion and, therefore, overrule

Foote’s sole issue on appeal.


                                          CONCLUSION

                  Having overruled Foote’s sole issue on appeal, we affirm the judgments of the

district court.




exist when facts prompting investigation “were (1) a number of recent burglaries in the area and
(2) four men standing together on a sidewalk at an intersection at 10:20 in the morning”); Scott v.
State, 549 S.W.2d 170, 172-73 (Tex. Crim. App. 1976) (concluding that detention was improper
when it was based only on (1) officer’s awareness “that there were reports of hubcap thefts in the
nearby apartment complex; (2) his characterization of the Towngate area as a ‘high crime area’; (3)
his observation of two black males driving a white and blue 1974 Cadillac on a dark, sparsely
traveled street at 1:30 a.m.; and (4) his observation of the ‘sheeting material’ in the back seat of the
car”); Gamble v. State, 8 S.W.3d 452, 452, 453-54 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
(determining that detention was not supported by reasonable suspicion where “sole bases for
detention were (1) the area had a history of drug sales; (2) the police had had frequent calls to the
area or the residence over the last year; (3) it was 3:00 a.m.; (4) appellant was either standing in the
street near, or walking in the street toward, a residence to which the officers had been called in past,
but at which they had never made arrests for drugs or weapons; and (5) appellant watched the
marked police car and walked away from it when it turned around”); Cook v. State, 1 S.W.3d 718,
721 (Tex. App.—El Paso 1999, pet. ref’d) (holding that investigatory detention was illegal where
officer was unable to see what object was in appellant’s hand and had no prior report regarding drug
dealing on that day by someone who looked like appellant); Shelby v. State, 888 S.W.2d 231, 234
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding that reasonable suspicion did not exist
when information officer had was that “(1) appellant and [a] juvenile were walking side by side
down a road in a high crime area early in the morning; (2) appellant and the juvenile separated after
seeing Officer Jackson’s marked patrol car; and (3) a substance appearing to be crack cocaine
was discovered on the juvenile pursuant to a valid search”); Gilliam v State, 832 S.W.2d 119, 121,
122-23 (Tex. App.—Houston [14th Dist.] 1992, no pet.) (upholding suppression of evidence
because detention was based on facts that truck was parked at convenience store that had closed for
night, that the truck’s door was open, and that Gilliam walked to truck and drove off; Gilliam did
not drive off a quick rate of speed, and officers had no knowledge of any other crimes occurring in
area around store).

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                                             __________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: August 9, 2012

Do Not Publish




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