      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00433-CR



                                Stephen Mark Hurley, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
       NO. D-1-DC-05-206188, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Stephen Mark Hurley appeals his judgment of conviction for felony driving

while intoxicated enhanced by a prior conviction for possession of a controlled substance. Following

his waiver of trial by jury, appellant entered pleas of “guilty” and “true.” The trial court assessed

punishment at five years’ imprisonment.


                                       POINT OF ERROR

               In his sole point of error, appellant advances the contention that the “trial court erred

in denying the motion to suppress because there was a detention not a mere encounter.” Actually,

there were two motions to suppress, one to suppress statements made to the arresting officer, and
another to suppress evidence resulting from an illegal detention, search and seizure. Both were

overruled by the trial court at a pretrial hearing.1


                                          BACKGROUND

                The only court reporter’s record (statement of facts) before this court is the pretrial

hearing on the motions to suppress. See Tex. Code Crim. Proc. Ann. art. 28.01(6) (West 2006). The

only witness to testify at the hearing was the arresting officer, John Paul Clauch, a former trooper

with the Texas Department of Public Safety (“DPS”).

                Officer Clauch testified that on November 30, 2005, he was patrolling on State

Highway 71 in Travis County. His general duty was traffic law enforcement. At about 3:10 p.m.

that afternoon, Officer Clauch observed a Ford Taurus parked on the side of State Highway 71,

partially on the paved or improved shoulder and partially on the unimproved shoulder of dirt and

gravel. Officer Clauch explained that he stopped his patrol vehicle behind the Ford Taurus. He

stated that he acted in accordance with the DPS’s motor assist policy; requiring an officer in a

marked police vehicle, who observes a motor vehicle on the side of the road, whether the vehicle was

occupied or not, “to stop and check by and make sure everything was okay.”2 He felt the policy was

based on “common sense and good judgment.”




        1
         Appellant in his sole point of error has not addressed or briefed the admissibility of various
statements made by appellant to Officer John Paul Clauch. See Tex. R. App. P. 38.1(h). Therefore,
nothing is presented on appeal as a result of the trial court’s ruling on these statements.
        2
          Officer Clauch related that the motor assist policy was in some respects discretionary with
the officer. It did not apply on all occasions.

                                                       2
               Officer Clauch related that when he stopped his patrol vehicle, its rear flashing

lights, camera, and “mike” came on automatically. The rear lights are not visible from the front of

the vehicle. Officer Clauch stated that the automatic activation of the flashing rear lights was for

safety.3 There was heavy motor vehicle traffic on State Highway 71 at that time of the afternoon.

As Officer Clauch approached the parked Taurus vehicle, he heard the engine running and saw one

individual in the car. He did not observe any damage to the Taurus, flat tires, or other matters

interfering with the operation of the vehicle. He saw no signs of distress.

               Officer Clauch testified that the Taurus was not illegally parked, nor did he see other

violations of the law when he stopped his vehicle to inquire if assistance was needed.

               Officer Clauch, on cross-examination, testified that he wanted to talk to the occupant

of the Taurus who was not free to drive away, but added: “. . . I mean I needed to go up and

approach him and make sure everything was okay, if that is what your question is.” The officer then

made clear that the occupant was free to leave and would have been allowed to drive off.

               Officer Clauch testified that when he reached the Taurus, the occupant, whom

he identified as appellant, was “passed out” in the driver’s seat with the engine still running. The

doors were locked except the driver’s door. The officer tried unsuccessfully to talk to appellant,

asking, “Is everything all right?” The officer tried twice to wake appellant before appellant awaken.

Officer Clauch described appellant’s physical appearance as “pretty droopy, heavy eyelids, red eyes”

and stated that appellant’s movements were slow and uncoordinated. An odor of alcohol emanated




       3
          Officer Clauch stated that the rear flashing lights are “to alert anybody coming up behind
me that I am on the side of the road outside the vehicle.”

                                                 3
from the Taurus. Appellant was asked to get out of the car. At this point, Officer Clauch stated that

he was trying to confirm that appellant was “okay,” because appellant was not responding at all to

the officer’s questions. Upon exiting the Taurus, appellant’s movements were unbalanced and

uncoordinated. There was a urine stain on appellant’s pants.

                After appellant began to answer some preliminary questions, Officer Clauch had

appellant attempt to perform some field sobriety tests. The officer later told the trial court that

he decided to arrest appellant for driving while intoxicated because appellant told him that he

(appellant) had had a lot to drink. There were open wine bottles in the back seat of the Taurus.

Appellant’s performance on the field sobriety tests was poor, and he had red eyes, slurred speech,

and an extremely strong odor of alcohol on his breath.

                When asked whether appellant answered any questions or made any statements to the

officer during the reading of the Miranda warnings, Officer Clauch replied, “No ma’am, he just told

me I love you and I’m sorry.”

                At the conclusion of the pretrial hearing on December 4, 2006, the trial court took

the matter under advisement, asking the parties to provide additional legal authority. On March 1,

2007, the trial court overruled the suppression motions. No findings of fact or conclusions of law

were filed.

                In his sole point of error, appellant complains that the trial court erred in overruling

the motions to suppress evidence “because there was a detention and not a mere encounter.”

Apparently, appellant means that his detention was without a reasonable suspicion of involvement

in criminal activity.



                                                   4
                                     STANDARD OF REVIEW

                Generally, we review a trial court’s ruling on a motion to suppress evidence for an

abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). We view a trial

court’s ruling on a suppression motion under a bifurcated standard of review. Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In our review, we do not engage in our own factual review. Romero v. State, 800 S.W.2d

539, 543 (Tex. Crim. App. 1990). 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. State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore,

we give almost total deference to the trial court’s rulings on historical facts as well as application-of-

law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State,

68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). When, however, the trial court rules on mixed

questions of law and fact that do not depend on the credibility and demeanor of witnesses, we review

its rulings de novo. Id. Questions of probable cause and reasonable suspicion are reviewed de novo.

See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Franks v. State, 241 S.W.3d 135,

140-41 (Tex. App.—Austin 2007, pet. ref’d).

                When, as here, the trial court does not enter findings of fact or conclusions of law,

we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial

court made implicit findings of fact that support its ruling so long as those findings are supported

by the record. Wiede, 214 S.W.3d at 25; Ross, 32 S.W.3d at 855; Carmouche, 10 S.W.3d at 328.

If the ruling on the suppression motion is reasonably supported by the record and is correct under



                                                    5
any theory of the law applicable to the case, the ruling will be upheld. State v. Steelman, 93 S.W.3d

102, 107 (Tex. Crim. App. 2002); Romero, 800 S.W.2d at 543; Franks, 241 S.W.3d at 141.

               The real suppression issue here is the initial contact between Officer Clauch and

appellant. The question of whether a given set of historical facts amount to a consensual police-

citizen encounter or a detention [and seizure] 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, Nos. PD-0936-07 & PD-0937-07, 2008 Tex. Crim. App. LEXIS 581 at *11

(Tex. Crim. App. May 7, 2008).


                        THREE CATEGORIES OF INTERACTIONS

               Both the Fourth Amendment to the United States Constitution and article I, section

9 of the Texas Constitution protect individuals from unreasonable searches and seizures. See

U.S. Const. amend. IV; Tex. Const. art. 1, § 9. Appellant here makes no claim that the Texas

constitutional provision affords him greater protection than its federal constitutional counterpart.

Therefore, we treat them jointly as providing the same protection. See Johnson v. State, 912 S.W.2d

227, 233-34 (Tex. Crim. App. 1995).

               The Texas Court of Criminal Appeals has recognized the following three categories

of interactions between police officers and citizens: (1) encounters, (2) investigative detentions,

and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); Francis v. State,

922 S.W.2d 176, 178 (Tex. Crim. App. 1996); State v. Bryant, 161 S.W.3d 758, 761

(Tex. App.—Fort Worth 2005, no pet.).




                                                  6
               For an arrest to be justified under the Fourth Amendment, it must be accompanied

by probable cause to believe that a person has engaged in or is engaging in criminal activity. See

Henry v. United States, 361 U.S. 98, 102 (1959). A person is arrested when his liberty of movement

is restricted or restrained by an officer or by a person executing a warrant of arrest or arresting

without a warrant. Tex. Code Crim. Proc. Ann. art. 15.22 (West 2005); Medford v. State, 13 S.W.3d

769, 772-73 (Tex. Crim. App. 2000). The constitution is invoked only when the “encounter” rises

to the level of the seizure of a person. McCraw v. State, 117 S.W.3d 47, 51 (Tex. App.—Fort Worth

2003, pet. ref’d). Both arrests and temporary investigative detentions involve seizures without a

bright-line distinction between them. Josey v. State, 981 S.W.2d 831, 839 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d). Sometimes the distinction is a matter of degree and involves different

factors. McCraw, 117 S.W.3d at 52.

               A detention may be justified on circumstances less than probable cause. Garza

v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989); Bryant, 161 S.W.3d at 760. A stop is

deemed an investigative detention when a law enforcement officer detains a person reasonably

suspected of criminal activity to determine the person’s identity or to momentarily maintain the

status quo to garner more information. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App.

1987). A temporary detention is justified when the detaining officer has specific, articulable facts

which, taken together with rational inferences from other facts, lead him to conclude the person

detained is, has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22

(1968); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Woods v. State, 956 S.W.2d

33, 38 (Tex. Crim. App. 1997). The facts must amount to more than a mere hunch or suspicion.



                                                  7
Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). An investigative detention occurs

when an individual is confronted by a police officer, yields to the officer’s display of authority and

is temporarily detained for the purpose of investigation. Johnson, 912 S.W.2d at 235. Whether

reasonable suspicion exists is determined by considering the facts known to the officer at the time

of the detention. Terry, 392 U.S. at 21-22; Franks, 241 S.W.3d at 141. A reasonable suspicion

determination is made by considering the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

An investigative detention must last no longer than necessary to effectuate the purpose of the stop

and must involve actual investigation. Akins v. State, 202 S.W.3d 879, 885 (Tex. App.—Fort Worth

2006, pet. ref’d).

                Detentions are distinct from encounters. Encounters are consensual interactions

between citizens and police that do not require reasonable suspicion and do not implicate

constitutional rights. See Florida v. Royer, 460 U.S. 491, 497-98 (1983); Franks, 241 S.W.3d

at 141. An encounters occurs when a police officer approaches an individual in a public place to

ask questions, request identification or request consent to search as long as the interaction is

consensual—that is, as long as the officer does not convey a message that compliance with

the officer’s request is required. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). Encounters do

not require any justification on the part of an officer. Harper v. State, 217 S.W.3d 672, 674

(Tex. App.—Amarillo 2007, no pet.). Encounters are consensual if a “reasonable person would feel

free to disregard the police and go about his business.” California v. Hodari D., 499 U.S. 621, 628

(1991); see also Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (an encounter is a

consensual interaction which the citizen is free to terminate at any time). Therefore, an encounter



                                                  8
is not considered a seizure for Fourth Amendment purposes and does not warrant constitutional

analysis. Hunter, 955 S.W.2d at 104; McCraw v. State, 117 S.W.3d at 51. “[E]ncounters between

citizens and police officers are incredibly rich in diversity.” Garcia-Cantu, 2008 Tex. Crim. App.

LEXIS 581 at *12 (quoting Terry, 392 U.S. at 13).

                In State v. Bryant, 161 S.W.3d at 762, it was held that a police officer was not

required to have reasonable suspicion that a defendant was engaged in criminal activity to approach

the defendant’s car and knock on the window. The interaction did not become an investigative

detention until after the defendant opened his car door and the officer smelled the odor of alcohol.

In Merideth v. State, a police officer approached a parked truck in which Merideth and his female

companion were sitting. 603 S.W.2d 872, 873 (Tex. Crim. App. 1980). Unable to see through the

rear window, the officer went to the driver’s door and knocked on the window. Id. When Merideth

opened the door, the officer smelled marihuana smoke and saw a hand-rolled cigarette butt in the

ashtray. Id. It was held that the interaction did not become an investigative detention until the officer

discovered the marihuana. Id.

                In Perez, 85 S.W.3d at 818, a police officer received a theft report from the

dispatcher, drove north until he spotted Perez, and slowed his police vehicle to determine if Perez

matched the suspect’s description as given. When Perez observed the officer looking at him, he ran

into a nearby apartment. The officer knocked on the apartment door, Perez answered, and the officer

smelled the odor of marihuana. The Court of Criminal Appeals held that until that point, the

interaction was a consensual encounter, not an investigative detention. Id. at 819; see also State




                                                   9
v. Carranza, 162 S.W.3d 407, 409 (Tex. App.—Beaumont 2005, pet. ref’d) (officer not required to

have reasonable suspicion to knock on a hotel door).

                 In Garcia-Cantu, 2008 Tex. Crim. App. LEXIS 581 at *15-16, the court stated:


       Police officers are as free as any other citizen to knock on someone’s door and ask
       to talk with them, to approach citizens on the street or in their cars and to ask for
       information or their cooperation. Police officers 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. All of these social interactions
       may involve embarrassment and inconvenience, but they do not involve official
       coercion. It is only when the police officer “engages in conduct which a reasonable
       man would view as threatening or offensive even if performed by another private
       citizen,” [that] such an encounter become[s] a seizure. 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. At bottom, the issue is
       whether the surroundings and the words or actions of the officer and his associates
       communicate the message of “We Who Must Be Obeyed.”


(citations omitted). In Garcia-Cantu, the Texas Court of Criminal Appeals discussed the distinction

between an encounter and an investigative detention. Under the totality of the circumstances, the

court concluded that there was an investigative detention and a seizure rather than a mere encounter.

Id. at *19-24.


                                           CONCLUSION

                 In the instant case, the evidence shows an encounter between the officer and appellant

which, as the facts developed, became a temporary investigative detention and later escalated into

an arrest of appellant based on probable cause. The facts do not need to be reiterated.

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

court’s ruling, we conclude that the trial court did not abuse its discretion in denying the motion to

                                                  10
suppress by finding that the initial contact between the officer and appellant was an encounter. The

only issue before us was the legality of the initial contact. The sole point of error is overruled.

               The judgment of conviction is affirmed.




                                               John F. Onion, Jr., Justice

Before Justices Pemberton, Waldrop and Onion*

Affirmed

Filed: June 26, 2008

Do Not Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).

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