                               NUMBER 13-09-00594-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

DONALD METOYER,                                                               Appellant,

                                              v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 319th District Court
                           of Nueces County, Texas.


                           MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides
       Appellant, Donald Metoyer, pleaded guilty to one count of possession of a firearm

by a felon, a third-degree felony; one count of theft of a firearm, a state jail felony; and

one count of theft, a state jail felony.   See TEX. PENAL CODE ANN. §§ 46.04, 31.03 (West

2010 & Supp. 2010). He was sentenced by the court to three years’ confinement in the
Texas Department of Criminal Justice—Institutional Division for the charge of

possession of a firearm by a felon and nine months’ confinement in the Texas

Department of Criminal Justice—State Jail Division for the two theft counts combined,

with the sentences ordered to run consecutively.     In two issues, Metoyer contends that

the trial court erred in failing to grant his motion to suppress because:       (1) he was

illegally detained by police; and (2) his consent to search his car was tainted by the

illegal detention. We affirm.

                                      I. BACKGROUND

      Before entering his guilty plea in this case, Metoyer sought to suppress the

evidence implicating him in all three charged offenses.     At a hearing on the motion to

suppress, the State called Officer Roger Parker of the Corpus Christi Police Department

who testified concerning the events leading up to Metoyer’s arrest. By Officer Parker’s

account, on April 27, 2009, the police received an anonymous tip through the Crime

Stoppers ―Save Our Streets‖ program that there was a stolen gun and a stolen laptop in

a white Ford Mustang that belonged to Metoyer and that was parked in an apartment

complex in Corpus Christi.   Officer Parker testified that when he received the tip, he was

already in the area ―working a whole separate tip,‖ and because he was not sure how

many white Mustangs would be in the complex, he called additional units to help him

locate the vehicle in the complex.

      After Officer Parker and the other officers drove through the entire complex, they

had found only one white Mustang.     Officer Parker testified that his intention was to ―get

a license plate and see if maybe [Metoyer was] living there and [he] could talk to him at

his front door the next day or something like that.‖ Officer Parker testified that when he


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returned to drive by the Mustang for a second time, however, all of the doors and trunk of

the car were open, and Metoyer was standing on the passenger side of the vehicle

loading bags into the trunk of the car. Officer Parker testified that at that time, he was

concerned that Metoyer may have been stealing from other cars in the parking lot

because he was ―walking in between vehicles, back and forth‖ and loading several bags

into the Mustang.   Officer Parker testified:

       That’s what kind of alerted me. Regardless [of] whether it was from the
       information of the tip or not[,] it was the activities that he was doing before,
       that’s why I actually stopped, to see exactly what he was loading up. . . .
       [T]hat he was loading up just unknown bags into the vehicle at 11 o’clock at
       night.

       Officer Parker notified the other officers on the scene that he was going to make

contact, and with his hand on his weapon, he approached Metoyer, displayed his badge,

and identified himself as a police officer. According to Officer Parker’s testimony, it was

then that he ―immediately noticed in plain view inside the trunk the gun case.‖ Officer

Parker asked Metoyer what he was loading into the vehicle to which Metoyer replied that

he was loading phonebooks in order to deliver them around the apartment complex.

Officer Parker asked Metoyer if he would consent to a search of his trunk, to which

Metoyer agreed.     At that time, Officer Parker could ―plainly see the gun case better, and

[he] also saw lap-top [sic] computers . . . in there.‖          Officer Parker’s testimony

additionally indicated that he saw several GPS systems in the trunk of Metoyer’s vehicle.

Officer Parker testified that after asking for additional consent to search the front of the

vehicle, Metoyer simply told him that ―the gun [was] in the front of the vehicle.‖ Before

searching the front of the vehicle, Officer Parker walked around the car and noted that he

―could see the handle of the gun sticking out from underneath the front seat.‖ He


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testified that the gun was in ―plain view.‖ When asked where he obtained the gun and

the laptops, Metoyer told the officer that he found them in or near a dumpster in the

complex. With the gun, however, Officer Parker found a registration receipt indicating

the owner of the gun, and when that name was run through the police system, Officer

Parker determined that the owner had reported a burglary in which the gun and a laptop

had been stolen.

      In his motion to suppress, Metoyer argued that his Fourth Amendment rights were

violated during his detention and Officer Parker’s search of his vehicle.     After hearing

the foregoing testimony and arguments from counsel, the trial court denied the motion to

suppress evidence but did not issue any findings of fact or conclusions of law.    Metoyer

then entered into a plea agreement with the State in which he pled guilty subject to the

condition that he be permitted to appeal the denial of his motion to suppress. This

appeal followed.

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

      Our review of a trial court’s ruling on a pretrial motion to suppress evidence is well

established law:

      The appellate courts, including this Court, 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. The appellate court should
      afford the same amount of deference to trial courts’ rulings on ―application
      of law to fact questions,‖ also known as ―mixed questions of law and fact,‖ if
      the resolution of those ultimate questions turns on an evaluation of
      credibility and demeanor. The appellate courts may review de novo
      ―mixed questions of law and fact‖ not falling within this category.

State v. Elias, No. PD-0735-10, 2011 Tex. Crim. App. LEXIS 448 at **14-15 (Tex. Crim.

App. April 6, 2011) (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000);


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Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

       Additionally, in order to challenge a search or seizure under the Fourth

Amendment, a defendant must prove that he had a legitimate possessory interest or

expectation of privacy in the vehicle that he claims was illegally searched, and ―because

standing is an element of a Fourth Amendment claim, the State may raise the issue of

standing for the first time on appeal.‖    See Kothe v. State, 152 S.W.3d 54, 60 (Tex.

Crim. App. 2004); Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). We

review the defendant’s standing de novo.     Kothe, 152 S.W.3d at 59.

       Three distinct categories exist to describe the interactions between police officers

and citizens:   (1) encounters, (2) investigative detentions, and (3) arrests.

               In determining which category an interaction falls into, courts look at
       the totality of the circumstances.          An encounter is a consensual
       interaction which the citizen is free to terminate at any time. Unlike an
       investigative detention and an arrest, an encounter is not considered a
       seizure that would trigger Fourth Amendment protection. An encounter
       takes place when an officer approaches a citizen in a public place to ask
       questions, and the citizen is willing to listen and voluntarily answers. On
       the other hand, an investigative detention occurs when a person yields to
       the police officer's show of authority under a reasonable belief that he is
       not free to leave. When the court is conducting its determination of
       whether the interaction constituted an encounter or a detention, the court
       focuses on whether the officer conveyed a message that compliance with
       the officer's request was required. The question is whether a reasonable
       person in the citizen's position would have felt free to decline the officer's
       requests or otherwise terminate the encounter.

Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) (internal citations omitted).

The type of police action that exemplifies the projection of authority required to raise the

interaction with a citizen to the level of detention can include ―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


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with the officer's request might be compelled.‖    U.S. v. Mendenhall, 446 U.S. 544, 554,

(1980).

       The United States Supreme Court has determined that ―[u]nder the Fourth

Amendment, a warrantless detention of a suspect that amounts to less than a full-blown

custodial arrest must be justified at least by a reasonable suspicion.‖    Id. (citing United

States v. Sokolow, 490 U.S. 1, 7 (1989) (―[P]olice 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.‖); Ford

v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005)).      ―A police officer has reasonable

suspicion to detain a person 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.‖       Id. (citing

Sokolow, 490 U.S. at 7; Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)); see

also Terry v. Ohio, 392 U.S. 1, 21 (1968) (noting that ―the police officer must be able to

point to specific and articulable facts which, if taken together with rational inferences

from those facts, reasonably warrant" an investigative detention).           In determining

whether reasonable suspicion exists, a court must look for any objective justification for

the detention and must disregard the actual subjective intent or motive of the detaining

officer.   See Terry, 392 U.S. at 21-22 (―[I]t is imperative that the facts be judged against

an objective standard: would the facts available to the officer at the moment of the

seizure . . . warrant a man of reasonable caution in the belief that the action taken was

appropriate.‖) (internal quotation marks omitted); see also Wiede v. State, 214 S.W.3d

17, 25 (Tex. Crim. App. 2007) (providing that, in considering the legitimacy of a


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detention, ―[t]he subjective intent or motivations of law enforcement officials is not taken

into account‖).

                                        III. DISCUSSION

A.   Standing

       The State contends at the outset that Metoyer did not establish his standing to

question the detention or the search. We disagree.         ―Although we defer to the trial

court’s factual findings and view them in the light most favorable to the prevailing party,

we review the legal issue of standing de novo.‖   Kothe, 152 S.W.3d at 59.     In this case,

the State does not contend that Metoyer did not in fact have a possessory interest in the

vehicle, only that he did not meet his burden of showing his possessory interest as a

matter of law.    Although Metoyer presented no witnesses at the hearing on the motion

to suppress, Officer Parker’s testimony was sufficient to establish Metoyer’s standing to

complain of the detention and the search.    Officer Parker testified that he received a tip

that a white Mustang ―belonging to Metoyer‖ contained stolen property, and additionally,

he testified that he eventually ran the license plates on the Mustang and found that

Metoyer owned the vehicle. Without rebutting evidence from the State, this is sufficient

evidence to establish Metoyer’s possessory right to the vehicle and, therefore, to

establish his standing to question the legality of the search.   See Hughes v. State, 24

S.W.3d at 838.

       Regardless, the fact that Metoyer is challenging the detention that occurred prior

to the search is enough to transcend any question of his expectation of privacy in the

vehicle because Metoyer alleges that it was the improper detention that led to the

discovery of the evidence that he now seeks to suppress.         See id. at 60-61 (holding


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that, although a defendant has no ―standing to complain about any search and seizure

conducted against [a third party], that issue is transcended by the illegal detention that

was found to have occurred earlier‖ and affirming the suppression of evidence found in a

place where the defendant clearly had no expectation of privacy); see also State v.

Brady, 763 S.W.2d 38, 42 (Tex. App.–Corpus Christi 1988, no pet.) (addressing the

issue of defendant's standing to challenge search although not raised by either State or

defendant in trial or appellate court).    Accordingly, we hold that Metoyer does have

standing to seek the suppression of the evidence collected in his vehicle.

B. Encounter vs. Detention

       The State additionally contends that the officers could not have illegally detained

Metoyer because he was not subject to a detention at all, but merely a police encounter.

Again, we disagree.      The trial court did not enter findings of fact regarding this

interaction, and therefore, we review it as a mixed question of fact and law subject to de

novo review.   See Elias, 2011 Tex. Crim. App. LEXIS 448, at *15. In this case, Officer

Parker testified that he displayed his badge to Metoyer and approached him with his

hand on his weapon. Additionally, the testimony indicated that the other officers ―pulled

up and walked up behind [Officer Parker] while [he] started talking to [Metoyer].‖ When

considering the totality of the circumstances, we conclude that a reasonable person in

Metoyer’s position would not have felt free to decline the officer's requests or otherwise

terminate the encounter.     See Crain, 315 S.W.3d at 49; Mendenhall, 446 U.S. at 554

(noting, specifically, that ―the threatening presence of several officers‖ and ―the display of

a weapon by an officer‖ can cause a mere encounter to effectively become a detention).

Metoyer was indeed detained by the police officers from the moment the interaction


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began, and therefore, the legality of the detention is subject to Fourth Amendment

analysis.   See Crain, 315 S.W.3d at 49.

C. Reasonable Suspicion

       Both of Metoyer’s issues on appeal are dependent on a holding by this Court that

his detention was improper under the Fourth Amendment—or more specifically, that the

officers who questioned him and obtained his consent to search his vehicle did not have

reasonable suspicion for such a detention.

       In his first issue, Metoyer argues that there were no facts available to the officer at

the time of the detention to corroborate the anonymous tip that he received through the

Crime Stoppers program and that an anonymous tip cannot alone be the basis of an

investigative detention.   See State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.–Austin

2007, pet. ref’d). It is true that an anonymous tip will rarely establish the required level

of suspicion necessary to justify an investigative detention, but when sufficiently

corroborated, it may be relied upon.    See Alabama v. White, 496 U.S. 325, 330 (1990)

(holding that an anonymous tip was sufficient to establish reasonable suspicion when the

tip gave identifying characteristics of the vehicle, gave its location, and indicated the

route it would take when leaving that location).   Although there was some corroboration

in this case—including observations that there was in fact a white Mustang parked at the

given address and that a gun case was viewed in plain sight in the trunk of Metoyer’s

vehicle—a completely independent basis for reasonable suspicion existed due to

Metoyer’s ―shuffling back and forth‖ between cars and, as it appeared to Officer Parker,

removing property from one vehicle and putting it into the trunk of the white Mustang.

This observation, along with the time of day and the number of recent thefts in the area,


                                              9
was enough to justify an investigative detention in order to ensure that Metoyer was not,

at that very moment, burglarizing another vehicle.     Crain, 315 S.W.3d at 48 (noting that

we will ―view the evidence in the light most favorable to the trial court's ruling‖ and

―sustain the trial court's decision if it concludes that the decision is correct on any theory

of law applicable to the case‖).       Officer Parker noted, ―At that time I was more

concerned about what he was doing coming from the other vehicles and what property

he was bringing from the other vehicles at 11 o’clock at night.      And at that time I was

detaining him for the purpose of that investigation.‖ These clearly articulable facts,

when combined with rational inferences and the anonymous tip implicating a white

Mustang at that exact address, would lead an officer to conclude that Metoyer actually

was, had been, or soon would be engaged in criminal activity.       See id. at 50.   Though

the property being loaded was not in fact stolen or being removed from another vehicle

at all, we must look only at the facts available to the officer at the time of the detention.

Id. (citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)).        Based on an

objective standard and the totality of the circumstances in this case, we conclude that

reasonable suspicion existed for the officers to detain Metoyer.     See Terry, 392 U.S. at

21-22. Therefore, we overrule Metoyer’s first issue.

D. Consent

       By his second issue, Metoyer contends that the consent he gave to Officer Parker

to search both his trunk and the passenger compartment of his vehicle was tainted by his

illegal detention.   Having already held that reasonable suspicion existed for the

investigative detention in this case, the detention was not illegal and, therefore, could not

have tainted any consent given by Metoyer.        See Brick v. State, 738 S.W.2d 676, 681


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(Tex. Crim. App. 1987) (listing the factors to show the voluntariness of consent, but

noting that these apply only to ―the detention, if unlawful‖ (emphasis added)); see also

Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (same). Accordingly, Metoyer’s second

issue is overruled.

                                   IV. CONCLUSION

       Having overruled both of Metoyer’s issues on appeal, we affirm the trial court’s

judgment.



                                                      ________________________
                                                      GINA M. BENAVIDES,
                                                      Justice

Do not publish.
TEX. R. APP. P.47.2 (b).

Delivered and filed the
2nd day of June, 2011.




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