Opinion filed July 17, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-12-00076-CR
                                  __________

                    IKE ANTYON BRODNEX, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 385th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR38804

                      MEMORANDUM OPINION
       Appellant, Ike Antyon Brodnex, was charged with the offenses of tampering
with physical evidence and possession of a controlled substance. He pleaded “not
guilty” to the tampering charge and “guilty” to the possession charge. After a
bench trial, the trial court acquitted him of the tampering offense but found him
guilty of the possession offense. The trial court sentenced him to confinement in
the Institutional Division of the Texas Department of Criminal Justice for a term of
twenty years. In a single issue, Appellant challenges the trial court’s denial of his
pretrial motion to suppress. We affirm.
                                             Background Facts
        At 2:00 a.m. on June 7, 2011, Officer Zachary Chesworth of the Midland
Police Department observed a male and a female leaving the Delux Inn in Midland
on foot. He testified that the area around the hotel is known for narcotic activity.
Officer Chesworth approached the two individuals and asked them what they were
doing and their names. When Appellant identified himself, Officer Chesworth
placed him in handcuffs and escorted him to the front of his patrol car. The officer
additionally asked Appellant, “Didn’t you just get picked up?” to which Appellant
replied, “Hell no.”
        Officer Chesworth testified that he placed Appellant in handcuffs for the
officer’s safety for the following reason: “[B]ased on my training and experience
as a police officer at the city of Midland, I knew that [Appellant] is a known
criminal in the city of Midland.” 1 Officer Chesworth also cited the time of day and
location of the encounter as a reason for placing Appellant in handcuffs “and the
fact that there was two individuals that were contacted and only me, and also
because I wasn’t sure where my nearest backup unit was.” Officer Chesworth
testified that Appellant was not under arrest at this point.
        After escorting Appellant and the female to the front of his patrol car,
Officer Chesworth started a pat-down search for weapons on Appellant. The video
from Officer Chesworth’s police car reveals that, while lifting the shirttail of
Appellant’s shirt and patting down the exterior of his front pants pockets, Officer
Chesworth asked Appellant, “Ike, you got anything on you?” to which Appellant
appeared to repy “uh-uh.” Officer Chesworth sought clarification from Appellant
        1
          At the beginning of the punishment phase, Appellant pleaded “true” to three prior convictions for burglary
of a habitation. The State additionally offered evidence of several other criminal convictions for Appellant,
including a conviction for assault.

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by asking him, “No?” Appellant did not disagree with the officer’s interpretation
of his response. Officer Chesworth then asked Appellant, “Mind if I check?” to
which Appellant appeared to reply “uh-uh” again. In reliance upon Appellant’s
apparent verbal consent, Officer Chesworth continued his search by looking inside
of Appellant’s pants pockets and around the waistband of Appellant’s pants.
Approximately one minute after beginning his search of Appellant, Officer
Chesworth found “a plastic cigar tube protruding from the top of [Appellant’s] butt
crack and his waistband.” Officer Chesworth testified that the cigar tube contained
what appeared to be several rocks of crack cocaine.
                                     Analysis
      In his sole issue, Appellant contends that the trial court erred in denying his
pretrial motion to suppress evidence. He initially argues that Officer Chesworth
did not have sufficient grounds to “come into contact” with Appellant.            He
additionally contends that Officer Chesworth’s discovery of the cigar tube was the
product of an excessive pat-down search.
      A trial court’s ruling on a suppression motion is reviewed on appeal for
abuse of discretion, with almost complete deference being given to its
determination of historical facts, especially if those are based on an assessment of
credibility and demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim.
App. 2013); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).
Regardless of whether the trial court granted or denied the motion, appellate courts
view the evidence in the light most favorable to the ruling. Wade v. State, 422
S.W.3d 661, 666 (Tex. Crim. App. 2013); State v. Woodard, 341 S.W.3d 404, 410
(Tex. Crim. App. 2011). We review de novo a trial court’s application of the law
of search and seizure to the facts. Wade, 422 S.W.3d at 667; Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will uphold the trial court’s
ruling if it is reasonably grounded in the record and correct on any theory of law
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applicable to the case. Wade, 422 S.W.3d at 667; Valtierra, 310 S.W.3d at 447–
48. When the trial court does not issue findings of fact, we imply findings that
support the trial court’s ruling if the evidence supports those findings. State v.
Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
      There are three distinct types of police-citizen interactions: (1) consensual
encounters that do not implicate the Fourth Amendment; (2) investigative
detentions that are Fourth Amendment seizures of limited scope and duration that
must be supported by a reasonable suspicion of criminal activity; and (3) arrests,
the most intrusive of Fourth Amendment seizures, that are reasonable only if
supported by probable cause. Wade, 422 S.W.3d at 667; Woodard, 341 S.W.3d at
410–11 (citing Florida v. Bostick, 501 U.S. 429, 434 (1991); Terry v. Ohio, 392
U.S. 1, 30–31 (1968); Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975)).
      Appellant contends that Officer Chesworth needed reasonable suspicion that
criminal activity was afoot in order to initiate contact with Appellant.        We
disagree. A consensual 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.” Crain, 315 S.W.3d at 49. In this regard, police officers are
as free as any other citizen to approach citizens to ask for information or
cooperation. Wade, 422 S.W.3d at 667; State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008). Such consensual encounters may be uncomfortable
for a citizen, but they are not Fourth Amendment seizures. Wade, 422 S.W.3d at
667; Garcia-Cantu, 253 S.W.3d at 241. As the Supreme Court noted in Florida v.
Royer, 460 U.S. 491, 497 (1983):
      [L]aw enforcement officers do not violate the Fourth Amendment by
      merely approaching an individual on the street or in another public
      place, by asking him if he is willing to answer some questions, by
      putting questions to him if the person is willing to listen, or by


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      offering in evidence in a criminal prosecution his voluntary answers to
      such questions.

Officer Chesworth initiated contact with Appellant by approaching him as he
walked along a street in a public place. Under the authorities cited above, the
officer’s initial contact with Appellant did not implicate Fourth Amendment
protections. Accordingly, Officer Chesworth was not required to have reasonable
suspicion in order to approach Appellant and ask him questions.
      Officer Chesworth’s encounter with Appellant quickly escalated to an
investigative detention when he handcuffed Appellant after Appellant identified
himself. See State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011)
(“An encounter is no longer consensual when an officer, through physical force or
a showing of authority, has restrained a citizen’s liberty.”). As noted previously,
investigative detentions must be supported by a reasonable suspicion of criminal
activity. Wade, 422 S.W.3d at 667–68.
      A police officer has reasonable suspicion for a detention if he has specific,
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably conclude that the detained person is, has been, or
soon will be engaged in criminal activity. Id. at 668; Derichsweiler v. State, 348
S.W.3d 906, 914 (Tex. Crim. App. 2011). This is an objective standard that
disregards the actual subjective intent of the officer and looks, instead, to whether
there was an objectively justifiable basis for the detention. Wade, 422 S.W.3d at
668; Derichsweiler, 348 S.W.3d at 914. The standard also looks to the totality of
the circumstances; individual circumstances may seem innocent enough in
isolation, but if the circumstances combine to reasonably suggest the imminence of
criminal conduct, an investigative detention is justified. Wade, 422 S.W.3d at 668;
Derichsweiler, 348 S.W.3d at 914. The standard requires only “some minimal
level of objective justification” for the stop. Foster v. State, 326 S.W.3d 609, 614
                                         5
(Tex. Crim. App. 2010).                 Whether the facts known to the officer amount to
reasonable suspicion is a mixed question of law and fact subject to de novo review.
State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012).
         Almost immediately upon contacting Appellant, Officer Chesworth
determined that Appellant was a “known criminal.” He additionally cited the
area’s narcotic activity and the time of day as reasons why he detained Appellant
by placing handcuffs on him. Individually, these facts do not establish reasonable
suspicion for an investigative detention. Hamal v. State, 390 S.W.3d 302, 308
(Tex. Crim. App. 2012) (prior criminal record); Crain, 315 S.W.3d at 53 (time of
day and level of criminal activity in an area). However, the Court of Criminal
Appeals recognized in Hamal 2 and Crain that the three factors cited by Officer
Chesworth are factors that may be considered in determining the existence of
reasonable suspicion. Hamal, 390 S.W.3d at 308; Crain, 315 S.W.3d at 53. The
applicable standard requires us to look at the totality of the circumstances to
determine if Officer Chesworth had an objectively justifiable basis for the
detention.       When these factors are considered together, they provided Officer
Chesworth with an objective basis for concluding that criminal activity was afoot.
         Appellant contends that Officer Chesworth’s discovery of the cigar tube
occurred as a result of an excessive pat-down search after he was detained. We
disagree. If an officer is justified in believing that a person whose suspicious
behavior he is investigating is armed, he may frisk that person to determine if the
person is, in fact, carrying a weapon and, if so, to neutralize the threat of physical
harm. Terry, 392 U.S. at 24; Wade, 422 S.W.3d at 669. The purpose of a Terry
frisk is not to discover evidence of a crime, but to permit an officer to pursue his

         2
          The court in Hamal recognized “[d]eception regarding one’s own criminal record” as another factor
supporting a determination of reasonable suspicion. 390 S.W.3d at 308. Although not cited by Officer Chesworth
at the suppression hearing, his question to Appellant of “[d]idn’t you just get picked up?” indicated that he believed
Appellant had recently been picked up and that Appellant was deceptive by not answering “yes.”

                                                          6
investigation without fear of violence. Carmouche v. State, 10 S.W.3d 323, 329
(Tex. Crim. App. 2000); see Terry, 392 U.S. at 29. “The sole justification of the
search . . . is the protection of the police officer and others nearby, and it must
therefore be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of the police
officer.” Terry, 392 U.S. at 29. Furthermore, an officer may place a suspect in
handcuffs for purposes of protecting and ensuring the officer’s safety before
performing a Terry pat-down search of the suspect when reasonably necessary
given the circumstances of the investigative detention. See Rhodes v. State, 945
S.W.2d 115, 117–18 (Tex. Crim. App. 1997).
      Appellant’s contention of an excessive pat-down search ignores the fact that
Officer Chesworth sought and obtained consent from Appellant to search his
person at the outset of his pat-down search. Consent to search is one of the
specific and “well-established exceptions to the constitutional requirements of both
a warrant and probable cause.” Carmouche, 10 S.W.3d at 331; see Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). Appellant asserts that he did not consent to
the search. We defer to the trial court’s implied finding that Appellant consented
to the search since that determination relies heavily upon the credibility of Officer
Chesworth and Appellant. Our review of the video of the encounter supports the
trial court’s implied finding that Appellant consented to the search. In this regard,
Officer Chesworth’s search of Appellant proceeded for approximately one minute
prior to the discovery of the cigar tube without Appellant ever telling the officer
that he did not consent to the search. Furthermore, Appellant has not presented a
claim that his consent was coerced. As a result of Appellant’s consent to the
search of his person, Officer Chesworth was not restricted by the limits of a
weapons pat-down in searching Appellant.


                                         7
      Finally, Appellant makes the following statement in his brief: “It is of great
concern that the officer was attempting to secure the consent of the Appellant
while reaching inside of his pockets.” Our review of the the video of the encounter
does not support Appellant’s contention because Officer Chesworth was feeling on
the outside of Appellant’s pants pockets when he obtained Appellant’s consent.
Appellant’s sole issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


July 17, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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